UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE William H.
Payne
Arthur R. Morales
Plaintiffs
v
CIV NO 97 0266
SC/DJS
Lieutenant General Kenneth A. Minihan, USAF
Director,
National Security Agency
National
Security Agency
Defendant
Federal
Rule of Civ. P.
60(b)(4)
RESPONSE TO
REPORT
AND RECOMMENDATION1 FOR SANCTIONS AND STRIKING OF
DOCUMENTS
1 New Mexico chief magistrate judge
Lorenzo Garcia writes
1Within ten (10) days after a party
is served with a copy of this analysis and recommended disposition, that party
may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such
analysis and recommendation. A party must file any objections within the
ten-day period allowed if that party wants to have appellate review of the
analysis and recommendation. Therefore, if no objections are filed by August
17, 2007, no appellate review will be allowed.
28 U.S.C. § 636(b)(1) states
§ 636. Jurisdiction, powers, and temporary assignment
(b)
(1) Notwithstanding any provision of law to
the contrary—
(A) a judge may designate a magistrate
judge to hear and determine any pretrial matter pending before the court,
except a motion for injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or quash an indictment or information made by the
defendant, to suppress evidence in a criminal case, to dismiss or to permit
maintenance of a class action, to dismiss for failure to state a claim upon
which relief can be granted, and to involuntarily dismiss an action. A judge of
the court may reconsider any pretrial matter under this subparagraph (A) where
it has been shown that the magistrate judge’s order is clearly erroneous
or contrary to law.
(B) a judge may also designate a magistrate judge
to conduct hearings, including evidentiary hearings, and to submit to a judge
of the court proposed findings of fact and recommendations for the disposition,
by a judge of the court, of any motion excepted in subparagraph (A), of
applications for posttrial [1] relief made by individuals convicted of criminal
offenses and of prisoner petitions challenging conditions of confinement.
CIV NO 97 0266 SC/DJS
is not "[p]retrial matter pending before the court ... " or is it "[p]roposed
findings of fact and recommendations for the disposition, by a judge of the
court, of any motion excepted in subparagraph (A), of applications for
posttrial [1] relief made by individuals convicted of criminal offenses and of
prisoner petitions challenging conditions of confinement."
Judge
M Christina Armijo lacked jurisdiction to invoke 28 U.S.C. §
636(b)(1).
Judge Garcia's writes "A party must file any objections
within the ten-day period allowed if that party wants to have appellate review
of the analysis and recommendation. Therefore, if no objections are filed by
August 17, 2007, no appellate review will be allowed."
28 U.S.C. §
636(b)(1)
Within ten days after being served with a copy,
any party may serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court shall make
a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also receive
further evidence or recommit the matter to the magistrate judge with
instructions.
Plaintiffs are filing "written objects" to
Garcia's report with ten days [plus three for service by mail] not counting
weekends. This is August 17, 2007. But plaintiffs are not "appealing" and will
not appeal since Armijo's
Order of Reference is voidable.
Motion to void
MOTION TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION and accompanying
MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID ORDER OF REFERENCE FOR LACK
OF JURISDICTION is before this court. See
docket entry numbers 93 and 94.
2 Judge
Lorenzo Garcia writes
THIS MATTER is before the Court on an Order of
Reference from United States District Judge M. Christina Armijo, directing the
undersigned Chief Magistrate Judge to issue a report and recommendation as to
whether Plaintiffs’ recent filings in this long-terminated case warrant
sanctions, including censure, striking pleadings or imposition of fines [Doc. 89, at 2].
Judge Armijo
wrote
[F]urther, the Chief Magistrate Judge shall
determine whether the Plaintiffs’ filing of pleadings in this case
constitutes a violation of the federal injunction previously entered
prohibiting William H. Payne and Arthur R. Morales from filing new lawsuits or
re-asserting claims which have previously been dismissed (Arthur R. Morales and
William H. Payne v. Theodore C. Baca, et al, CIV 01-634, (Docket No.
61).2
Judge Garcia may undertake whatever legal analysis he
deems necessary and may conduct hearings to determine if there is a violation
of the injunction and, if so, to recommend the imposition of sanctions,
including but not limited to, censure, striking pleadings, and imposition of
fines. Judge Garcia shall issue his Report and Recommendation to the Court in
accord with the requirements of 28 U.S.C. §
636(b)(1).
2Pro se Plaintiffs’ access to the Court was
not absolutely barred. Plaintiffs could file pleadings as long as they complied
with the requirements outlined in the attachment, Appendix A, to the Honorable
William F. Downes’ injunctive order. [Id.] See also, Tripati v. Beaman,
878 F.2d 351, 354 (10th Cir. 1989).
in ORDER OF
REFERENCE issued 21st day of June, 2007.
Judge Armijo
failed to ask judge Garcia whether plaintiffs' motion was in any way invalid
but rather Armijo focused on attacking plaintiffs not the merits of the motion.
Judge Armijo over-stepped her bounds and thus
demonstrated her bias or incompetence.
Armijo instructed
Garcia to rule on contentions made in OTHER CASES.
CIV NO 97 0266 SC/DJS should first and foremost be judged
on the merits of the motion in this case only.
A court is
authorized by statute to entertain jurisdiction in a particular case only, and
undertakes to exercise the jurisdiction conferred in a case to which the
statute has no application, the judgment rendered is void. See McLellan v.
Automobile Ins. Co. (CA9 Ariz) 80 F.2d 344; State ex rel. Yohe v. District
Court, 33 Wyo 281, 238 P. 545.
A court may not render a judgment
which transcends the limits of its authority, and a judgment is
void if it is beyond the powers granted to the court by the law of its
organization, even where the court has jurisdiction over the parties and the
subject matter. See Royal Indem. Co. v. Mayor, etc., of Savannah,
209 Ga 383, 73 S.E.2d 205; Spencer v. Franks, 173 Md 73, 195 A 306, 114 ALR
263; Road Material & Equipment Co. v. McGowan, 229 Miss 611, 91 So.2d 554,
motion dismd 229 Miss 630, 92 So.2d 245; Howle v. Twin States Express, Inc.,
237 NC 667, 75 S.E.2d 732; Fitzsimmons v. Oklahoma City, 192 Okla 248, 135 P.2d
340; Robertson v. Commonwealth, 181 Va 520, 25 S.E.2d 352, 146 ALR 966; Reburg
v. Lang, 239 Wis 381, 1 N.W.2d 759. The courts of a state may render only such
judgments as they are authorized to do under the laws of the state. Mosely v.
Empire Gas & Fuel Co., 313 Mo 225, 281 SW 762, 45 ALR 1223. See People ex
rel. Arkansas Valley Sugar Beet & Irrigated Land Co. v. Burke, 72 Colo 486,
212 P. 837, 30 ALR 1085; People v. Wade, 116 Ill 2d 1, 107 Ill Dec 63, 506
N.E.2d 954; Gray v. Clement, 296 Mo 497, 246 SW 940; Ex parte Solberg, 52 ND
518, 203 NW 898; Russell v. Fourth Nat’l Bank (Ohio) 102 Ohio St 248, 131
NE 726; Hough v. Hough (Okla) 772 P.2d 920; Farmers’ Nat’l Bank v.
Daggett (Tex Com App) 2 S.W.2d 834; State v. Turner, 98 Wash.2d 731, 658 P.2d
658; Shopper Advertiser, Inc. v. Wisconsin Dep’t of Revenue, 117 Wis 2d
223, 344 N.W.2d 115.
Judge Armijo wrote, "2Pro
se Plaintiffs’ access to the Court was not absolutely barred. Plaintiffs
could file pleadings as long as they complied with the requirements outlined in
the attachment, Appendix A ... ." No appendix A was
attached.
3 Judge Lorenzo Garcia writes
Plaintiffs William H. Payne (“Payne”)
and Arthur R. Morales (“Morales”) filed their pro se complaint in
this case over ten years ago, in February 1997. On October 27, 1999, Senior
United States District Judge Santiago E. Campos granted summary judgment in
favor of Defendants [Docs. 72, 73]. On December 23, 1999, Judge Campos denied
Plaintiff Payne’s Motion to Alter or Amend the Memorandum Opinion and
Order [Doc. 77]. Payne appealed and, on December 13, 2000, the United States
Court of Appeals for the Tenth Circuit affirmed the District Court’s
ruling. The case was thus terminated and has been closed for over six and
one-half years.
Any judgment rendered by a court which lacks
jurisdiction, either of the subject matter of the parties, or lacks inherent
power to enter the particular judgment, or entered an Order which violated due
process or was procured through extrinsic or collateral fraud, is null and
void, and can be attacked at any time, in any court, either
directly or collaterally, provided that the party is properly before the court.
See U.S.Const.Amdt. V; F.R.Civ.P. 60(b)(4); CR 60(b)(5); Federal cases: Klugh
v. U.S., 620 F.Supp. 892 (D.S.C. 1985); Rubin v. Johns, 109 F.R.D. 174
(D.Virg.Is.1985); Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986);
Millikan v. Meyer, 311 US 457, 61 S.Ct. 339, 85 L.Ed.2d 278 (1940); Long v.
Shorebank Development Corp., 182 F.3d 548 (CA7 1999).
New information
related to CIV NO 97
0266 SC/DJS recently surfaced on Wikipedia.
Failed Nojeh Coup In July 1980, the U.S. national
security adviser Zbigniew Brzezinski met Jordan's King Hussein in Amman to
discuss detailed plans for Saddam Hussein to sponsor a coup in Iran against
Khomeini. King Hussein was Saddam's closest confidant in the Arab world, and
served as an intermediary during the planning. The Iraqi invasion of Iran would
be launched under the pretext of a call for aid from Iranian loyalist officers
plotting their own uprising on July 9, 1980 (codenamed Nojeh, after
Shahrokhi/Nojeh air base in Hamedan). The Iranian officers were organized by
Shapour Bakhtiar, who had fled to France when Khomeini seized power, but was
operating from Baghdad and Sulimaniyah at the time of Brzezinski's meeting with
Hussein. However, Khomeini learned of the Nojeh Coup plan from Soviet agents in
France, Pakistan, and Latin America. Shortly after Brzezinski's meeting with
Hussein, the President of Iran, Abolhassan Bani-Sadr quietly rounded up six
hundred officers and executed many of them, putting an effective end to the
Nojeh Coup [2]. Saddam would decide to invade without the Iranian officer's
assistance, beginning the Iran-Iraq war on 22 September
1980. 4 Judge Lorenzo Garcia writes
On May 16, 2007, Payne and Morales filed a
Motion to Set Aside Judgment [Doc. 81]. Judge Armijo’s Order of Reference
followed.
Garcia failed to mention that
plaintiffs also filed MANDATORY JUDICIAL NOTICE [Doc. 82]
5 Judge Lorenzo Garcia writes
The undersigned Chief Magistrate Judge issued an
Order to Show Cause [Doc. 92] directing pro se Plaintiffs Payne and Morales to
show cause by way of written response and supporting affidavits why their
pleadings [Docs. 81, 82, 84, 85 and 91] should not be stricken or denied, and,
further, why they should not be sanctioned for filing repetitive, frivolous or
barred pleadings.
The undersigned Chief Magistrate Judge issued an Order
to Show Cause [Doc. 92] directing pro se Plaintiffs Payne and Morales to show
cause by way of written response and supporting affidavits why their pleadings
[Docs. 81, 82, 84, 85 and 91] should not be stricken or denied, and, further,
why they should not be sanctioned for filing repetitive, frivolous or barred
pleadings. The Court’s Order to Show Cause required a written response and
supporting affidavits no later than July 25, 2007. Neither Payne nor Morales
complied with the Court’s directive. Neither filed a response to the Order
to Show Cause, nor did they offer any rationale why the pleadings should not be
stricken or denied, or why they should not be sanctioned for their abusive
litigation practices. Neither Plaintiff sought any extension of time within
which to comply with the Court’s order. The time for responding
expired.2 The district’s local Rule, D.N.M.LR-Civ. 7.1(b)
provides that failure to respond constitutes consent to the proposed relief.
Thus, Payne and Morales are deemed to have consented to having their pleadings
stricken and sanctions imposed. While the Court concludes that relief is
appropriate under D.N.M.LR-Civ. 7.1(b), the Court nonetheless reviews the Order
to Show Cause on its merits.
Judge Garcia's statement,
"The Court’s Order to Show Cause required a written response and
supporting affidavits no later than July 25, 2007. Neither Payne nor Morales
complied with the Court’s directive." is false. This document was mailed
on July 25, 2007, therefore, complies with a proper and timely filing to the
court as per Rule 5.
Garcia acknowledges this:
2On July 26, 2007, Payne and Morales
filed a Motion to Void Order of Reference for Lack of Jurisdiction [Doc. 93], as well as a pleading captioned “Mandatory Judicial Notice and
Authorities to Void Order of Reference for Lack of Jurisdiction” [Doc. 94]. They did not respond to the Order to Show Cause
and did not submit the supporting affidavits mandated by the Court. Their
motion to void makes no mention of the Court’s directive to show cause why
their pleadings should not be stricken or denied.
Motion
to void judge Armijo's Order of Reference obviated any response to Garcia's
Order to Show Cause.
Judge Armijo allows Garcia to issue REPORT AND
RECOMMENDATION prior to ruling on plaintiffs' Motion to Void Order of Reference
for Lack of Jurisdiction [Doc. 93].
Judge Armijo's failure to rule on Motion
to Void Order of Reference for Lack of Jurisdiction before allowing Garcia to
issue REPORT AND RECOMMENDATION violated due process.
The limitations
inherent in the requirements of due process of law extend to judicial, as well
as political, branches of the government, so that a judgment may not be
rendered in violation of those constitutional limitations and guaranties.As to
persons and agencies bound by due process, see 16A Am.Jur.2d, Constitutional
Law §§ 742, 821-824.See Hanson v. Denckla, 357 US 235, 2 L.Ed.2d
1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct. 10; Ladner v.
Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.
6 Judge Lorenzo Garcia
writes
The Court’s Order to Show Cause recites
that Payne and Morales engaged in a multi-year campaign of filing abusive,
repetitive and frivolous lawsuits, pleadings and papers in both federal and
state courts.3 They targeted dozens upon dozens of defendants in
their various lawsuits. These defendants included governmental agencies,
America’s national laboratories, governmental officials, federal judges,
state judges, U.S. Attorneys, Assistant U.S. Attorneys, private attorneys,
corporations, corporate officials, officers, directors and employees of
corporations, and numerous others. In each instance, it was necessary for
defendants to secure counsel and to take time and expend resources in
responding to frivolous and repetitive lawsuits. This was a costly and
time-consuming process.
Plaintiff Payne was fired from Sandia Laboratories in
1992 after Sandia manager James Gosler turned Payne into the FBI for apparently
committing some national security crime. Payne sued in New Mexico federal court
to recover damages. Judge John Conway presided.
Affidavit by James Gosler filed 12/31/1992 and given to
judge John Conway under the cloak of secrecy apparently information also
provided to the FBI.
On December 8, 2006 the FBI declassified a letter
written by
Wayne R Gilbert, Assistant Director in Charge, Intelligence
Division, to the National Security Agency requesting a classification review
relating to the documents Gosler gave the FBI, so it no wonder that these
matters have spanned about 15 years.
Garcia falsely claims "frivolous and repetitive
lawsuits." To the contrary, all lawsuit have been based on written evidence of
guilt of defendants in plaintiff Payne pursuit of recovery of several million
dollars in damages cause by Gosler, Sandia Labs and other because of false
charges resulting in criminal release of the false and defaming [libelous]
documents seen at
http://www.prosefights.org/nmlegal/supremecourt/cvpa.htm#gallegos
and recently revealed documents identified by Mr Gilbert of the FBI.
Garcia's statement,"In each instance, it was necessary
for defendants to secure counsel and to take time and expend resources in
responding to frivolous and repetitive lawsuits. This was a costly and
time-consuming process." shows that defendants wasted taxpayer money on lawyers
rather than settle prima facie case lawsuits.
New Mexico state 12 person jury trial lawsuits CV-
2000-10289, CV-2001-06293, CV 2000-10278, and CV 2001-05900, three of which
were fraudulently removed to federal court and two improperly dismissed in
state court must either be settled or tried before juries with no oral argument
required. All the evidence of guilt of defendants is in writing.
7 Judge Lorenzo Garcia writes
Notwithstanding the dozens of lawsuits initiated
by these pro se litigants, neither Payne nor Morales succeeded in any claim
before any judicial forum. Each and every lawsuit they filed was
dismissed.
The lawsuits were dismissed in violation of our right to
trial by jury guaranteed inviolate by 7th Amendment to
US Constitution and
28 USC Rule 38.
Reason for multiple lawsuits was
that plaintiffs could not find any official of the court or any other branch of
government to uphold the Constitution which caused each and everyone of them to
violate their oath of office to protect and defend the US
Constitution.
8 Judge Lorenzo Garcia writes
Notwithstanding the dozens of lawsuits initiated
by these pro se litigants, neither Payne nor Morales succeeded in any claim
before any judicial forum. Each and every lawsuit they filed was dismissed.
Payne and Morales were deemed “frivolous litigators” by both state
and federal judges, and their many lawsuits served only to harass defendants,
congest court dockets, impose financial and time burdens on defendants, and
otherwise improperly burden the judicial system. Various state and federal
judges censured and sanctioned Payne and Morales for misconduct, violation of
the procedural rules, violation of court orders, or for misconduct under Fed.
R. Civ. P. 11.4 Two state judges, the Honorable Robert Scott and the Honorable
Kenneth Brown, and one federal judge, the Honorable William F. Downes, enjoined
Payne and Morales from filing new suits or from raising issues which were
previously resolved in prior lawsuits unless they complied with specific filing
requirements as authorized by Tripati v. Beaman, 878 F.2d 351 (10th Cir.
1989).5
5See Morales and Payne v. Baca et
al., CIV 01-634 WFD [Docs. 57, 61]; in Payne v. Brennan et al., 2001-07794 (On
5/16/2002, State District Court Judge Kenneth Brown entered an injunction
granting defendants’ motion for injunctive relief prohibiting William H.
Payne from filing lawsuits in New Mexico court without representation of
licensed counsel); in Morales and Payne v. Brennan et al., 2002-3425 (July 8,
2002, then State District Court Judge Robert H. Scott permanently enjoined
Morales from filing any pleadings in state court unless represented by counsel.
Judge Scott is now a Magistrate Judge with the United States District Court in
New Mexico. In both cases, Payne and Morales were deemed “vexatious”
litigants who impair, impede, delay and obstruct the administration of justice.
In both district court cases, Payne and Morales sought to appeal the dismissals
of their cases and the injunctions entered against them. In both instances, the
appeals were dismissed or denied. A court may judicially notice records of
sister courts. See, e.g., United States v. Estep, 1060, 1063 (10th Cir. 1985)
(judicial notice is particularly applicable to court records of litigation
closely related to the case before
it).
Garcia's statement "Notwithstanding the
dozens of lawsuits initiated by these pro se litigants" is a lie. Payne filed
two Federal lawsuits: No. 92-1452 ) (Sealed) with judge Conway presiding and 99 cv 270 with judge Lorenzo Garcia presiding for recovery
of damages from the false and defaming documents seen at
http://www.prosefights.org/nmlegal/supremecourt/cvpa.htm#gallegos.
Morales
filed three federal lawsuits: one with Manuel Garcia which resulted in Sandia
National Laboratories settling with all parties except Morales who had a bench
trial with judge Galvan presiding, and a jury trial lawsuit
No. CIV- 97-350-LH/DJS for retaliation with judge C Leroy
Hansen presiding.
And, of course,
CIV NO 97 0266
SC/DJS.
Five New Mexico 12 person jury trial lawsuits resulted
because of judicial misconduct by judges Downes, Garcia, Scott, and Brown which
we have not yet received but paid for.
This makes eight, not
dozens.
New Mexico state lawsuits are:
CV- 2000-10289 Defendants: assistant US
attorney Robert J Gorence, US attorney John J Kelly, assistant US attorney
Manuel Lucero, assistant US attorney Jan Elizabeth Mitchell, magistrate judge
Don F Svet CV-2001-03118 Defendants: New Mexico state judge Theodore C. Baca,
US attorney Norman C. Bay, assistant US attorney Phyllis A. Dow, assistant US
attorney Raymond Hamilton, law firm Rodey, Dickason, Sloan , Akin & Robb
PA, and judge Martha Vazquez
CV-2001-06293 Defendants: assistant US attorney John J
Zavits, judge William F. Downes, law firm French & Associates PC
CV 2000-10278 Defendants: Sandia Corporation - Sandia
National Laboratories, American Telephone and Telegraph Corporation, Lockheed
Martin Corporation, law firm Krehbiel, Bannerman & Horn, lawyer John A.
Bannerman, Phoenix EEOC administrator Charles Burtner, RESPONDENT magistrate
judge Lorenzo F. Garcia, Sandia labs employee Michael G. Robles and lawyer
Carol Lisa Smith
CV 2001-05900 Defendants: assistant US attorney
Phyllis A. Dow, judge William F. Downes, law firm Rodey, Dickason, Sloan , Akin
& Robb PA
Since all evidence of guilt of defendants
is in writing, we are prepared to go to New Mexico state jury trials with no
oral argument required if we do not settle.
Federal criminal complaint
affidavits have been filed with Kirtland Air Force Base commander Colonel
against New Mexico chief judge Parker, Wyoming chief judge Downes, Utah chief
judge Benson, and New Mexico judges Conway, Hansen, Garcia, Scott, Brown and
Vazquez in their attempts to avoid monetary settlement for wrongs done us by
Sandia National Laboratories. See
http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan.
See Appendix A hardcopy without links without links to written evidence of
guilt.
Judge Lorenzo Garcia earned an additional criminal complaint for
obstruction of justice in this case with evidence of guilt in writing in court
record REPORT AND RECOMMENDATION1 FOR SANCTIONS AND STRIKING OF
DOCUMENTS. See
http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan2.
See appendix B hardcopy without links to written evidence of
guilt.
In a case quoted by the court involving Tripate v.
Beaman, 878, F. 2d, 351, 357 (10th Cir. 1989). The use of the penalty of filing
restrictions was regarded as a serious sanction. This case as well as those
noted in the previous paragraphs consists of pro-se litigants, none of whom
were sanctioned any where near the ten thousand dollars ($10.000) utilized by
this court.
9 Judge Lorenzo Garcia writes
Notwithstanding the federal or state
courts’ efforts to bar Payne and Morales from engaging in this type of
misconduct, they continue with their efforts to frustrate courts, burden
litigants, sap judicial resources, impose litigation costs on blameless
defendants, and congest court dockets.
Plaintiffs merely
want what they paid for: our right to trial by jury guaranteed inviolate by
7th Amendment to
US Constitution and
28 USC Rule 38. Our cases are prima facie since all
of the evidence of guilt of defendants is in writing.
10 Judge Lorenzo
Garcia writes
Their latest attempt to revive this present
long-dormant lawsuit and to resurrect arguments which were rejected decisively
long ago by this District Court, and affirmed on appeal, is only the most
recent example of these plaintiffs’ disregard for orderly judicial
processes. They seek to have this lawsuit, like Banquo’s ghost,
resurrected from the dead.6 Payne’s and Morales’ conduct
is reprehensible, and it is sanctionable, both under the Court’s clear
authority to regulate its own docket and under the factors outlined in
Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir.
1992).
CIV NO 97 0266
SC/DJS is a jury demand lawsuit which was improperly dismissed by late
judge Santiago Campos because right to trial by jury guaranteed inviolate by
7th Amendment to
US Constitution and
28 USC Rule 38.
The court or tribunal must have the
power of authority to render the particular judgment. A judgment may not be
rendered in violation of those constitutional limitations and guaranties.
See as to persons and agencies bound by due process, see 16A Am.Jur.2d,
Constitutional Law §§ 742, 821-824. See Hanson v. Denckla, 357 US
235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct.
10; Ladner v. Siegel, 298 Pa 487, 148 A 699, 68 ALR
1172.
So Campos' dismissal is voidable.
Any
judgment rendered by a court which lacks jurisdiction, either of the subject
matter of the parties, or lacks inherent power to enter the particular
judgment, or entered an Order which violated due process or was procured
through extrinsic or collateral fraud, is null and void, and can be attacked at
any time, in any court, either directly or collaterally, provided that the
party is properly before the court. See See U.S.Const.Amdt. V; F.R.Civ.P.
60(b)(4); CR 60(b)(5); Federal cases: Klugh v. U.S., 620 F.Supp. 892 (D.S.C.
1985); Rubin v. Johns, 109 F.R.D. 174 (D.Virg.Is.1985); Triad Energy Corp. v.
McNell, 110 F.R.D. 382 (S.D.N.Y. 1986); Millikan v. Meyer, 311 US 457, 61 S.Ct.
339, 85 L.Ed.2d 278 (1940); Long v. Shorebank Development Corp., 182 F.3d 548
(CA7 1999).
11 Judge Lorenzo Garcia writes
Court’s Authority to Control its Docket
A party’s right of access to the courts is neither
absolute nor unconditional. Tripati v. Beaman, supra, at 353 (10th Cir. 1989).
In particular, there is no constitutional right of access to the courts to
prosecute actions that are frivolous or malicious. Id.; Phillips v. Carey, 38
F.2d 207, 208 (10th Cir. 1981); Johnson v. Stock, No. 03-4219, 2005 WL 1349963,
at *3 (10th Cir. Jun. 8, 2005) (in imposing filing restrictions, the court
noted that the plaintiff’s “vexatious litigiousness has resulted in
an immense waste of judicial resources”). When a litigant abuses filing
privileges, restrictions and sanctions are appropriate, as “[t]he goal of
fairly dispensing justice is compromised when the Court is forced to devote its
limited resources to the processing of repetitious and frivolous claims.”
In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994) (internal punctuation
omitted).
Payne’s and Morales’ abuses are legion. Not only
have they filed multiple frivolous lawsuits, but they have also used their
pleadings to heap abuse, disrespect and invective on parties, opposing counsel
and judges.
Courts have the inherent power to impose a variety of
sanctions on both litigants and attorneys in order to regulate their docket,
promote judicial efficiency, and deter frivolous filings. Stafford v.
Comm’r of Internal Revenue, 805 F.2d 895, 896 (10th Cir. 1986), citing
Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S. Ct. 2455, 2463
(1980), (discussing the “‘well-acknowledged’ inherent power of a
court to levy sanctions in response to abusive litigation practices”).
Sanctions and filing restrictions are an appropriate exercise of a
court’s power to protect itself from the deleterious impact of repetitive,
unfounded pro se litigation. Johnson v. Cowley, 872 F.2d 342, 344 (10th Cir.
1989); Olson v. Coleman, 997 F.2d 726, 729 (10th Cir. 1993) (pro se litigant
filing in forma pauperis nevertheless ordered to pay sanctions for his
“history of vexatious and frivolous filings”); Werner v. Utah, 32
F.3d 1446, 1447-48 (10th Cir. 1994).
There is strong precedent establishing the
inherent power of federal courts to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under the appropriate
circumstances . . . . Even onerous conditions” may be imposed upon a
litigant as long as they are designed to assist the district court in curbing
the particular abusive behavior involved.
Tripati v.
Beaman, supra, at 352 (internal punctuation omitted).
In addition to this inherent power, the Court also has
authority under a variety of statutes and court rules to impose monetary
sanctions “[t]o deter frivolous and abusive litigation and promote justice
and judicial efficiency,” Braley v. Campbell, 832 F.2d 1504, 1510 (10th
Cir. 1987). See, e.g., 28 U.S.C. § 1651(a) (federal courts “may issue
all writs necessary or appropriate in aid of their respective
jurisdictions”); 28 U.S.C. § 1927 (an attorney or other person
conducting litigation in federal court may be required to satisfy personally
any excess costs, expenses and attorney fees if he or she “multiplies the
proceedings in any cases unreasonably and vexatiously”); Fed. R. Civ. P.
Rule 11(c) (authorizing the court to “impose an appropriate sanction”
on attorneys or parties who file pleadings for improper purposes or who present
claims not warranted by existing law or by nonfrivolous argument for the
extension or modification of existing law).
The Court thus finds that
it has authority to impose sanctions on Payne and Morales for their disregard
of court procedure and their well-documented history of vexatious and abusive
litigation. Plaintiffs only file lawsuits when all of
the evidence of guilt of defendants is in writing.
"The court" in
"The Court thus finds that it has authority to impose sanctions on Payne and
Morales for their disregard of court procedure and their well-documented
history of vexatious and abusive litigation." is judge Lorenzo Garcia who is
defendant in CV 2000-10278 and was presiding judge in voidable 99 cv 270.
Garcia flaunts disregard for 28 USC
§ 455. Disqualification of justice, judge, or magistrate
judge
(a) Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned. ...
So Garcia should
not have been selected by magistrate by judge Armijo and Garcia should have
disqualified himself under 28 USC § 455. Therefore Garcia does not have
the authority to impose sanctions on plaintiffs.
12 Judge Lorenzo
Garcia writes
Ehrenhaus Analysis
Before
sanctions are imposed, the Court is required to conduct an assessment pursuant
to Tenth Circuit precedent. Ehrenhaus supra; and Meade v. Grubbs, 841 F.2d 1512
(10th Cir. 1988); M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869 (10th Cir.
1987). The Ehrenhaus factors which the Court must consider are: (1) the degree
of actual prejudice to the opposing party; (2) the amount of interference with
the judicial process; (3) the culpability of the litigant; (4) whether the
court warned the party in advance that dismissal of the action would likely be
taken as a sanction for non-compliance; and, (5) the efficacy of lesser
sanctions.
Eherenhaus analysis is unwarraented
since plaintiffs only file lawsuits when all of the evidence of guilt of
defendants is in writing.
13 Judge Lorenzo Garcia
writes
Degree of Prejudice to Defendants In the present
case, there can be no doubt that Defendants have been prejudiced. Morales’
claims against Defendant were dismissed by the Honorable Santiago E. Campos on
April 30, 1998 [Doc. 42]. Thereafter, Judge Campos granted summary judgment in
favor of Defendants dismissing Payne’s claims [Doc. 72]. Both Payne and
Morales filed a Notice of Interlocutory Appeal. The Tenth Circuit dismissed the
interlocutory appeal. Following final judgment dismissing this case, a new
appeal was taken to the Tenth Circuit. On December 13, 2000, the Tenth Circuit
Court of Appeals affirmed the dismissal of this lawsuit [Doc. 80]. Thus, this
case has been closed for over six and one-half years. Even though they lost
this lawsuit and this case has long been closed, Payne and Morales now seek to
set aside the judgment, claiming that the Court was without jurisdiction to
dismiss the case. Plaintiffs’ jurisdictional arguments are specious.7
Payne’s and Morales’ argument that the Court lacked jurisdiction is
without merit. The Court clearly had both in personam and subject matter
jurisdiction. When a party actively participates in litigation and seeks
affirmative relief from the court, he thereby waives any right to assert a lack
of personal jurisdiction. Feldman Inv. Co. v. Conn. Gen. Life Ins. Co., 78 F.2d
838, 841 (10th Cir. 1935); Hunger United States Special Hydraulics Cylinders
Corp. v. Hardie-Tynes Mfg. Co., 203 F.3d 835 (Table, text in Westlaw), No.
99-4042, 2000 WL 147392, at *3 (10th Cir. Feb. 4, 2000). The pertinent inquiry
is whether the party demonstrated a willingness to submit a dispute to judicial
resolution, ORI, Inc. v. Lanewala, 147 F. Supp. 2d 1069, 1074 (D. Kan. 2001);
see also, Thompson v. United States, 312 F.2d 516, 519 (10th Cir. 1962)
(discussing a party’s “voluntarily invok[ing] the judgment of the
court”). In this case, Plaintiffs submitted themselves to the jurisdiction
of the Court by filing their complaint and seeking affirmative relief. Thus,
their own lawsuit vested the Court with in personam
jurisdiction.
7In addition to their Motion to Void
Judgment for Lack of Jurisdiction [Doc. 81], the plaintiffs also filed a
“Motion to Void Order of Reference for Lack of Jurisdiction” [Doc.
93], docketed as a Motion for Reconsideration, and a “Notice and
Authorities” in support thereof [Doc. 94], both filed July 26, 2007. These
latter two submissions are prolix and unclear, but Plaintiffs apparently seek
to “void” the Order of Reference previously entered in this case on
the ground the Court lacks jurisdiction.
Furthermore, there is no
question as to the Court’s subject matter jurisdiction. Plaintiffs invoked
this Court’s jurisdiction under the Freedom of Information Act.
[Complaint, Doc. 1]. Under 28 U.S.C. § 1331, the district courts have
original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States. 1mage Software, Inc. v. Reynolds &
Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006). Plaintiffs’ claim
invoked rights and remedies under the Freedom of Information Act and a United
States court has original jurisdiction to resolve matters arising under a
federal statute. Thus, it is patently clear that the Court was vested with
subject matter jurisdiction.
While a court has a duty to inquire into
its subject matter jurisdiction at any stage in the litigation, Arbaugh v. Y
& H Corp., 546 U.S. 500, 126 S. Ct. 1235, 1244 (2006), there is no basis
for making any such inquiry in this case, as it was clear six and one-half
years ago just as it is clear now, that this Court had jurisdiction to decide
the case.
When Payne and Morales filed their motion to set aside
judgment [Doc. 81], Defendant was forced to contact counsel who, in turn, had
to retrieve old documents and pleadings, research the case and file a response
to the pleadings filed by Payne and Morales. All of this time and effort
detracts from Defendant’s statutory responsibilities and imposes burdens
and costs on Defendant as well as Defendant’s attorney, the United States
Attorney for the District of New Mexico.
The litigation history for
these pro se Plaintiffs indicates that they take a gleeful delight in burdening
governmental agencies, federal defendants, federal judges, federal attorneys
and others. It is clear to this Court that Plaintiffs’ conduct is
intentional and pursued with the idea of imposing burdens and hardships on
defendants.
13 Judge Lorenzo Garcia writes
Interference With the Judicial
Process
Here, again, the evidence is clear that the Court
has been prejudiced. Over the course of many years, Payne and Morales filed
multiple lawsuits and virtually flooded state and federal dockets with
frivolous pleadings. For example, in the present case, there are 92 docket
entries of record. Each docket entry represents a burden on a defendant, a
court officer, a judge and others. In days of declining court budgets and
increasing criminal workloads, the time devoted to handling frivolous
litigation, such as the present case, wastes precious judicial resources. It is
abundantly clear that is part of Payne’s and Morales’ goal. The pro
se litigants’ most recent round of pleadings compelled the Court to review
closed cases, assign a new judge, issue new orders, including the Order to Show
Cause, and otherwise spend time and judicial resources that were not necessary.
The Court concludes that it has been prejudiced as a result of this frivolous
litigation. Culpability of the Litigants If a litigant is represented by
counsel and the misconduct is occasioned by an attorney rather than the party,
then, the attorney is the proper individual to suffer the consequence of any
sanction. In re Sanction of Baker, 744 F.2d 1438, 1442 (10th Cir. 1984)(if the
fault lies with the attorneys, that is where the impact of the sanction should
be lodged); see also M.E.N. Co. v. Control Fluidics, Inc., supra, at 873-74.
Here, however, Payne and Morales represent themselves, and are therefore solely
responsible for their own misconduct. Prior Warnings It is inappropriate to
impose sanctions unless prior warning is given an offending party that
particular conduct is inappropriate and the party could be subject to
sanctions. Willner v. Univ. of Kansas, 848 F.2d 1023, 1030 (10th Cir. 1988). In
this case, numerous warnings given by various federal and state judges have
gone unheeded. Indeed, in Morales v. Baca, No. CIV 01-634 WFD, a prior lawsuit
initiated by these litigants, the trial judge, the Honorable William F. Downes,
stated:
The Court finds the Plaintiffs’
Complaint to be a frivolous, ranting diatribe grounded in obstinacy, ignorance,
and unbridled contempt for the law--a continuation of the Plaintiffs’
litigious pattern, spanning nearly a decade. Plaintiffs sue anyone who has the
audacity to disagree with them. The Court has tolerated Plaintiffs’
tantrums long enough. Plaintiffs will either show deference to the Constitution
of the United States and the statutes and rules lawfully promulgated thereunder
or pay the price.
[Doc. 57, p. 15].
Even after
Judge Downes’ stern warning and entry of an order enjoining the filing of
new civil actions, [Civ. 01-634, Doc. 61], these pro se litigants continued to
file pleadings [Docs. 53, 59, 60, 62, 63, 68, 69, 72]. This caused Judge Downes
to write:
The Plaintiffs’ continued frivolous
claims against defendants amount to harassment and contemptible disrespect for
the judicial process and its participants--both judges and attorneys. * * *
After having made itself abundantly clear, the Court now recognizes that
Plaintiffs have no intention of accepting the Court’s determination, as
they continue to file frivolous motions. This Court has made its final
determination in this matter. It will no longer consider Plaintiffs’
motions . . . .”
[Doc. 74].
Given their frivolous litigation history, Payne and
Morales were permanently enjoined by State District Judges William Brown and
Robert Scott from filing any new matters in any New Mexico State court. So,
too, Payne and Morales were permanently enjoined in federal court from filing
new lawsuits or raising issues which were previously dismissed by the court.
(See Judge Downes’ order in Morales v. Baca, Doc. 57).
Within the last month, Senior Judge John Edwards
Conway in Payne v. Sandia Corp., et al., No. CIV 92-1452 JC, directed the Clerk
of the Court to no longer receive any pleadings filed by these two
litigants.8 It is undisputed that they have been warned that their
conduct is subject to sanctions.
8In Judge Conway’s case, 92-1452, the
trial Court ruled against Payne by way of summary judgment on August 23, 1994
[Docs. 154, 155]. Payne appealed and, on March 3, 1999, the Tenth Circuit
affirmed [Doc. 167]. In that case, as in this, Payne sought to reopen the
litigation years after it was over.
13 Judge Lorenzo
Garcia writes
Efficacy of Lesser Sanctions
In this case, lesser sanctions have been imposed, but to no avail. Payne and
Morales have been sanctioned for their litigation conduct on several prior
occasions.9 In addition to the monetary sanctions, none of which was
apparently ever collected, both litigants were repeatedly warned by judicial
officers that their conduct was inappropriate and that their lawsuits were
frivolous. These warnings were ignored. After consideration of the Court’s
legal authority, the Ehrenhaus factors and a review of the state and federal
injunctions preventing these litigants from further burdening defendants and
the court system, the Court determines that sanctions are
appropriate.
9In this present case, Judge Svet ordered
Plaintiffs to pay sanctions of $625.00 for violating Court orders [Doc. 41]. In
Morales v. Lockheed Martin Corp., et al., CIV 97-350 LH/DJS, the court ordered
sanctions of $2,260.85 for failing to comply with discovery obligations and
court orders. In Payne v. EEOC et al., CIV 99-270 LFG/KBM, the court sanctioned
Payne for Fed. R. Civ. P. 11 violations in the amount of
$912.50.
Garcia states "In this present case,
Judge Svet ordered Plaintiffs to pay sanctions of $625.00
..."
This earned Svet a New Mexico state felony criminal
complaint.
8 New Mexico citizen Don Svet commits two third degree
felony acts of
extortion in writing.
COUNT 1 Svet orders $625 being taken from
citizens Morales and Payne without due process [see
http://www.prosefights.org/nmlegal/supremecourt/svet1.htm].
COUNT 2 Don Svet issues order of garnishment for $1,793.56 [see
http://www.prosefights.org/nmlegal/supremecourt/svet2.htm]
without any cause of action.
COUNT 1 third degree felony extortion crime occurred March 10,
1998.
COUNT 2 third degree felony extortion crime occurred April 20,
1999.
Svet and others were sued in
New Mexico 12 person jury trial lawsuit 2000-10289
guaranteed inviolate by New Mexico and federal constitutions on October 20,
2000 for replevin and harassment for return of the $625 taken without due
process hearing.
New Mexico 2000-10289 was fraudulently removed to federal court
on November 8, 2000 without required certification stating under oath that
replevin and harassment were federal questions.
Replevin, of course, is a state, not federal,
issue.
Thus Svet and accomplices began to attempt to conceal
himself [NMSA 30-01-09 A] from justice and New Mexico 2000-10289 was
quashed by fraudulent removal to federal court [NMSA 30-01-09 B(3).
Therefore, tolling of time [NMSA 30-01-09] to bring felony extortion charges against
Svet on COUNT 1 stopped 2 years and 8 months into the 5 year statute of
limitations specified in
NMSA 30-01-08].
Tolling of statute of limitations
to bring felony extortion charges against Svet on COUNT 2 stopped 1 years and 7
months into the 5 year statute of limitations specified in
NMSA 30-01-08]. Garcia writes, "CIV
97-350 LH/DJS, the court ordered sanctions of $2,260.85 for failing to comply
with discovery obligations and court orders. , the court ordered sanctions of
$2,260.85 for failing to comply with discovery obligations and court orders."
Judge C Leroy Hansen threatened to dismiss jury trial lawsuit
CIV 97-350 LH/DJS if Morales did not pay $2,260.85.
Garcia
writes "In Payne v. EEOC et al., CIV 99-270 LFG/KBM, the court sanctioned Payne
for Fed. R. Civ. P. 11 violations in the amount of $912.50." This is judge
Garcia who did not disqualify himself as required by
28 USC § 455.
14 Judge Lorenzo
Garcia writes
Conclusions
In reviewing the
dozens of cases filed by these litigants, it is apparent that literally
hundreds of thousands of dollars of attorney fees and costs have been spent to
protect defendants from these Plaintiffs’ frivolous lawsuits. Unless
significant sanctions are imposed and collection efforts pursued by the United
States, there is no hope that other defendants will be free from Payne’s
and Morales’ abusive lawsuits, or that courts will not be further burdened
with their prolixity and frivolousness.
It is clear that this lawsuit
was long ago dismissed by a court acting within its jurisdiction, and that the
dismissals were affirmed. It is further clear that after being warned not to
engage in frivolous litigation, Plaintiffs have again sought to raise the very
issues which were dismissed and affirmed. Plaintiffs, in knowing violation that
this lawsuit was dismissed and the dismissal affirmed, again filed frivolous
pleadings. Their conduct was intentional, malicious and sanctionable, and the
undersigned magistrate judge recommends imposition of substantial financial
penalties intended to prevent Plaintiffs from engaging in this conduct in the
future.
Accordingly, I recommend that Payne and Morales be sanctioned
in the amount of $10,000 each, for a total sanction of $20,000 payable to the
Clerk of the Court, and the Court further directs that the United States
Attorney file an abstract of judgment and proceed to enforce and collect the
sanctions imposed on Payne and Morales.
While a $10,000 sanction, per
litigant, is high, it is not unprecedented. Indeed, attorneys in this district
have had personal sanctions in twice that amount imposed against them for
violating court orders. See Vesco v. Snedeker, No. CIV 00-1805 WJ/LCS (D.N.M.
July 12, 2002)[Judgment, Doc. 119]. A $10,000 sanction is justified given the
repetitive and abusive nature of Plaintiffs’ conduct, and especially given
the fact that prior lesser sanction orders have been entered without impact.
Moreover, the prior modest sanctions imposed have had no impact in deterring
this blatant misconduct. Thus, a penalty sufficient to get the Plaintiffs’
attention and to serve as a future deterrent is necessary.
Garcia wrote,"In reviewing the dozens of cases filed by
these litigants, it is apparent that literally hundreds of thousands of dollars
of attorney fees and costs have been spent to protect defendants from these
Plaintiffs’ frivolous lawsuits."
Rebuttal: sentence should read,
"In reviewing the eight cases filed by these litigants, it is apparent that
literally hundreds of thousands of dollars of attorney fees and costs billed to
taxpayers have been squandered on attorneys to shield defendants using crooked
judges from settling with Plaintiffs’ prima facie case
lawsuits."
Garcia wrote, "Unless significant sanctions are imposed and
collection efforts pursued by the United States, there is no hope that other
defendants will be free from Payne’s and Morales’ abusive lawsuits,
or that courts will not be further burdened with their prolixity and
frivolousness."
Rebuttal: sentence should read, "Unless significant
sanctions are imposed defendants, attorneys and judges as message to settle
prima facie lawsuits rather than rely on a corrupt court system, abuse of the
court system will continue and be the demise of the US way of
life."
Garcia wrote, "It is clear that this lawsuit was long ago
dismissed by a court acting within its jurisdiction, and that the dismissals
were affirmed. It is further clear that after being warned not to engage in
frivolous litigation, Plaintiffs have again sought to raise the very issues
which were dismissed and affirmed." is false.
Rebuttal:
3
The docket
4
MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO
DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ
5
MANDATORY JUDICIAL NOTICE and authorities for void
judgment
were properly docketed and, as a result,
are not frivolous.
Issues include a criminal complaint affidavit against
former secretary of state Brzezinski which Garcia attempts to strike of docket
thus earning him
a second criminal complaint affidavit.
Garcia
wrote, "Plaintiffs, in knowing violation that this lawsuit was dismissed and
the dismissal affirmed, again filed frivolous pleadings. Their conduct was
intentional, malicious and sanctionable, and the undersigned magistrate judge
recommends imposition of substantial financial penalties intended to prevent
Plaintiffs from engaging in this conduct in the future."
Rebuttal:
Garcia, in the above sentence, attempts to blatantly ignore Federal Rule of
Civ. P. 60(b)(4) and attack plaintiffs when judge Armijo should be ruling
on motion. Garcia violated his oath of office in
writing.
Garcia wrote,
"Accordingly, I recommend that Payne and Morales be sanctioned in the amount of
$10,000 each, for a total sanction of $20,000 payable to the Clerk of the
Court, and the Court further directs that the United States Attorney file an
abstract of judgment and proceed to enforce and collect the sanctions imposed
on Payne and Morales."
Rebuttal: Plaintiffs have always followed
the law to the best of their ability. Above sanctions are
unwarranted.
Garcia wrote, "While a $10,000 sanction, per
litigant, is high, it is not unprecedented. Indeed, attorneys in this district
have had personal sanctions in twice that amount imposed against them for
violating court orders. See Vesco v. Snedeker, No. CIV 00-1805 WJ/LCS (D.N.M.
July 12, 2002)[Judgment, Doc. 119]. A $10,000 sanction is justified given the
repetitive and abusive nature of Plaintiffs’ conduct, and especially given
the fact that prior lesser sanction orders have been entered without impact.
Moreover, the prior modest sanctions imposed have had no impact in deterring
this blatant misconduct. Thus, a penalty sufficient to get the Plaintiffs’
attention and to serve as a future deterrent is necessary.
"
Rebuttal: Garziere v. First National Bank of Northwest
(Ok. App. Ct. 117 June 30, 1998). In the citation is the salient quotation that
states that a sanction should ordinarily be limited to "what is sufficient to
deter repetition of such conduct or comparable conduct by others in a similarly
situated situation."
The court in coming to a fine often thousand
dollars ($ 10.000) bases its decision on a singular case that involves
practicing attorney's but not pro-se litigants. In order to provide a more
equitable and fair comparison is the case of Monroe v. U.S. Dept of Justice
(10th Cir. 2002) where as a pro-se litigant, a fine and sanction of only five
hundred dollars ($500) was levied by the court, even after the court had warned
Mr. Monroe about possible sanctions " if he were to continue filing frivolous
appeals, there would be monetary sanctions as well as filing restrictions."
In the citation of Demo v. Keating, John Doe Warden George Bush U.S.
President (10th Cir. 1/20 2003). There is included the relevant quote from
Wemer v. Utah 32 F. 3d, 1446,1447,1448 (10th Cir. 1994) where it is noted that
due to fifty filings in Federal District Court, and because of twenty-two
appeals a sanction consisting of only filing restrictions was utilized by the
court. In Winslow v. Homer (In re Winslow) 17 F. 31 711,715 (10th Cir. 1994).
The court in this case used solely a penalty of filing restrictions even though
the pro-se litigant had registered seventeen (17) appeals. The case of Ketchum
v. Cruz 961, F. 2d 916, 918 (10th Cir. 1998), where fifteen lawsuits had been
registered with the sanction being one of filing restrictions.
In
another case involving sanctions is Sam Beilue v. International Brotherhood of
Teamsters Local No. 492 (10th Cir. July, 2001). Wherein it is stated " there
must be sufficient nexus between noncompliance with the Rules, and the amount
of fees, and expenses awarded as a sanction" quoting Tumball v. Wilkens, 893,
F. 2d, 256,259 (10 Cir. 1990) (per curiam). In another case involving a pro-se
litigant was that of Miller v. United States of America and Internal Revenue
Service (No. 87-2969 ^t Cir. Feb 8, 1989), where a monetary sanction of only
fifteen hundred dollars ($ 1500) was considered an appropriate amount by the
court for pursuing meritless constitutional claims through the U.S. Court of
judicial review. This was done after a warning had been issued five years (5)
prior to the issuance of the actual fine.
Therefore any
sanctions of any pro se litigant of $10,000 each is no president in any
court.
15 Judge Lorenzo Garcia writes
Recommendation
The Court
recommends that Plaintiffs’ pleadings 81, 82, 84, 85, 91, 93 and 94 be
stricken, and that Payne be personally sanctioned in the amount of $10,000, and
that Morales be sanctioned in the amount of $10,000. Each is directed to pay to
the Clerk of the Court the $10,000 sum within thirty days. If this payment is
not made, the Court recommends that the United States be directed to take all
reasonable and necessary action to enforce the sanction orders and secure
payment. The Court further recommends that the Clerk be directed to accept no
further pleadings from Plaintiffs in this case.
Garcia's
recommendation to the court that "[P]laintiffs’ pleadings 81, 82, 84, 85,
91, 93 and 94 be stricken ... " must not be accepted because it removes a
proper motion before the court which should be ruled on.
And as
mentioned to
Col. Feehan
Failure to bring Brzezinski to justice casts a
dark shadow of corruption on judicial and government branches.
Further,
a failure to bring Brzezinski, and others, to justice may be an invitation for
retaliation by those aggrieved by what Brzezinski and others have
done.
RELIEF SOUGHT
16
Strike docket entries 89, 92, 95, and 96 as void.
17
Immediately grant motion in docket entry 81 and proceed to trial or settlement
within 90 days or, in the alternative, judge Armijo is removed under
Rule
63 for reason of incompetence and bias.
Respectfully
submitted,
_________________________
William H. Payne
13015
Calle de Sandias NE
Albuquerque, NM 87111
_________________________
Arthur R. Morales
465 Washington St
SE
Albuquerque, NM 87108
Date: ____________________
Pro se
litigants
CERTIFICATE OF SERVICE
I HEREBY
CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF
JURISDICTION was emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd
ST NW, ABQ, NM 87102 at jan.mitchell@usdoj.gov, and DIR NSA at
foialo@nsa.gov.
________________________
Signed
________________________
Date
 |
