Recently, I received a Findings and Recommendation of the United States Magistrate Judge in response to the RICO action I filed (previously posted to this blog). No surprise, really, but that Court is trying to avoid taking on this issue, mostly through misrepresenting the facts presented and trying to avoid considering their authority and responsibility pursuant to RICO. It has been my long experience that the federal courts turn a blind eye to Montana's improprieties, but this is a new low even for them.
Irregardless, as has been my pattern of late, I am posting the content of my Objections to this blog for public scrutiny. I believe you can fairly assess the basic direction of the Findings and Recommendation by the content of my response, but by all means, feel free to review the original. Afterall, US District Court documents are public record.
Here then is my Objection:
24 1st Avenue West #105B
Kalispell, MT 59901
(406) 257-0479 / 871-3893 (cell)
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF MONTANA
Ron Glick, ) Cause No.
Plaintiff, ) Objections To The Court's Findings And ) Recommendations Of United States Magistrate
Eleventh Judicial District Court of )
Montana, et al, )
Comes now Plaintiff, pro se herein, to object to the United States Magistrates Findings and Recommendations, and to wit:
The Court has made determinations based upon presumptions and conclusions that are not supported by Plaintiff's pleadings. In fact, much of what the Court relies upon seems to be an independent perception of how due process should work, yet ignores the actual reported facts within the content of Plaintiff's complaint and addendum. Additionally, though the Court has in multiple instances within this cause made reference to Plaintiff's pleadings being too extensive and lacking evidence, in the past when Plaintiff has filed overly brief accounts or supported his attestments with documentation, the Court has found fault in claims not having substance and not needing to be supported by evidence at the initial pleading stage. In essence, it seems that no matter what method Plaintiff seeks to deliver his claims to this Court, it is simply impossible to meet the criteria of the Court because it changes each and every time Plaintiff makes a filing. It seems clear from Plaintiff's extensive history with this Court therefore that no claim filed by Plaintiff will ever be given fair consideration upon the merits of his claim, regardless of whether Plaintiff makes brief or extended attestments, provides or does not provide evidence of the wrongs committed or simply makes filings or does not.
In any instance, this Court has demonstrated a blatant prejudice towards Plaintiff and his claims, and as such, though Plaintiff is making the filing of his objections in this cause, it is with the full expectation that his arguments will be ignored and that the necessity of filing an appeal will be required to proceed. Still further, Plaintiff is fully aware that the Court will yet again attempt to block this appeal by declaring that any appeal will not have merit or simply instructing the clerk not to file the notice of appeal, yet Plaintiff still intends to contest these issues. Just as the State of Montana, in its various forms, seeks to ignore the issues raised by Plaintiff, and thereby to validate the violations of Plaintiff's civil rights, so does this Court seem intent upon preserving a corrupt power structure within the State of Montana by ignoring its powers and duties under the United States Constitution. Plaintiff cannot begin to speculate the reason for this blatant disregard of integrity of the Court, but as he has been filing with this Court now for over four years and has met the same biases and prejudices repeatedly while under this Court's jurisdiction, it cannot be ignored that such biases and prejudices exist.
As such, Plaintiff does make these objections, knowing full well that his efforts to seek justice will be ignored and directly obstructed by this Court yet again, but does make notice that the content hereof will be publicly posted on the Internet so that the actions of this Court will be held to public scrutiny.
I. The Court's Summary
The Court summarizes the actions of government Defendants against Plaintiff, yet does so in such a way as to omit the actual offending elements of said Defendants' misdeeds. Though the actual elements of the criminal cause are not for the Court to address from a legal stance, the elements presented by Plaintiff are critical in the establishment of his RICO claim. For instance, the Court completely bypasses the components of Constitutional infringement by referencing years and omitting the actual span of time involved, ignoring the constitutional issue of speedy trial, and fails to discuss whatsoever other underlying elements.
In actuality, Plaintiff was initially investigated in or around July, 2003, did not have prosecution nor arrest manifest until in or around February, 2004, and did not see trial until in or around July, 2005. In context, this represents a total period of two years between time of initial allegation and actual trial. Further, the actual delay between original allegation and actual charging, the result of said Defendants' actually dismissing the allegation entirely and only raising it again following Plaintiff taking legal action against said Defendants, is known in the courts as presumption of prejudice, since such an extended period had elapsed without prosecution following the original report, approximately 8 months (See State v Wombalt, 753 P2d 330 (1988)). By glossing over the actual dates and elapsed time, the Court apparently seeks to disregard one of the most fundamental elements of Plaintiff's claim: that Defendants have abused the legal system as it exists in Flathead County to pursue a vendetta against Plaintiff that defied all pretense of due process or jurisprudence.
Still further, the Court disregards the impact of specific Defendants upon present and future actions, in specific Defendants Curtis and Lympus, in that they both retain control and influence over significant issues, including the continued presidence over any further actions with Plaintiff's and Defendant [*]'s criminal causes of action, as well as within the local court system that exceed their lawful capacities as judges in the normally comprehended context. Defendant Curtis retains jurisdiction over any present or future actions regarding Plaintiff's criminal cause, including current actions of Defendant Edwards' successful efforts to expand the restrictions of Plaintiff's probation to essentially bars him from all public places, and since Defendant [*]'s charge was dismissed without prejudice, Defendants are fully capable of refiling their charges against her and placing her yet again under the jurisdiction of Defendant Lympus. Still further, Defendant Curtis was the assigned judge for the appeal upon the restraining order of Defendant [*]'s, and said Defendant has neglected to act upon the cause before her now for over six months, and has instead acted to expound upon the actual criminal sentence to replace the authority of the restraining order.
Should said Defendants retain jurisdiction over the criminal causes set forth herein, they continue to hold prejudicial influence over the welfare of Plaintiff and consequently their import in this proceeding is greatly minimized by the Court's summarization of their relevance.
Still further, the Court has taken the context of the property suit into a separate capacity than it was intended in Plaintiff's filings. Though actions have been taken by certain Defendants in this cause towards the RICO action, specifically Defendants Allison, Stadler and Paskell, and others have acted to obstruct Plaintiff's access to his property in the furtherance of the RICO cause of action, the actual property claim is not at issue before this Court, save as an effort to remove the cause to this Court.
Notably, the Court minimizes yet again the conduct of Defendants by, in summarizing Plaintiff's assertions, by highlighting specific language used by Plaintiff in such a way as to undermine the integrity of Plaintiff's claim. In fact, Plaintiff has actual records that support his “allegedly 'tampered'” claims, yet did not include such in his filing since the Court has previously instructed him not to include exhibit testimony. Again, this demonstrates a prejudice of the Court's towards defending the actions of Defendants based upon the belief of how a judicial system operates rather than actual understanding of the criminal misconduct of Defendants. Just because this Court could not conceive of such chicanery being committed by judicial officers should not exclude the Court's consideration that such is in fact occurring.
II. Plaintiff's Pending Actions
The Court has taken the position that assuming jurisdiction over Plaintiff's state causes based upon the presumption that Plaintiff retains state remedies. This is simply not true. Plaintiff has demonstrated a clear and credible effort to exhaust all state remedies, including filing for writs of supervisory control over Flathead County judicial Defendants, filing complaints with the Office of Disciplinary Counsel and Judicial Ethics Committee, and attempting communication with Defendants to resolve these issues Plaintiff has sought to have issues reviewed through appeal and writ, and each instance has been met with a complete and total disregard of the issues, similar to how this Court is treating these claims. There simply are no remaining legal actions Plaintiff can take to secure his right to proceed in fair and impartial capacities within the state. As such, Plaintiff is seeking removal of all state causes overseen by Defendants from the State courts to this court, though in alternative, Plaintiff would be equally content on having the causes removed to another jurisdiction within the state, as he has requested of the Montana State Supreme Court. Utilizing the Court's own foundation, there remains no adequate opportunity in state proceedings to raise any issue, federal or otherwise. Lacking any credible recourse, Plaintiff has now turned to this Court as the last conceivable action to take without forever losing his claims and civil rights altogether.
In essence, the state has had innumerable opportunities to resolve the pending federal issues, mosts specifically, the deprivation of due process required to proceed in a civil claim and the abuse of the criminal procedures to pursue private vendettas against an individual. In other countries, the persecution of political activists is frowned upon by America as a whole, yet when an American is subjected to a perversion of the judicial system to further the corruption of state, county or city officials, this Court's position seems to be that that is acceptable, as it preserves the independence of the state. In this perception, this Court ignores everything that has occurred over the last six years. The state courts have had abundant opportunity to address these issues, but refuse to each and every time they are raised in state courts. This Court does not have the luxury of ignoring the federal issues under the authorities it has cited, since the state court either ignores them the federal issues when raised or simply disregards them when they are convenient.
In absence of any realistic expectation that the state will actually address federal issues, this Court is not prohibited from intervening to resolve them.
III. Judicial Immunity
The Court has reached the conclusion that Defendants Lympus, Curtis, Stadler and Ulbricht have judicial immunity from prosecution. This standard is applicable in all instances where a judge is acting within the clear legal context of his office, but when a judge acts outside that capacity, he becomes liable. It is well established that a judge enjoys absolute immunity against monetary damages for acts performed in his or her judicial capacity except when the judge acts “in clear absence of all jurisdiction” (Stump v. Sparkman, 435 US 349, 356-57 (1978); Mireless v. Waco, 502 US 9 (1991)). Further, qualified immunity, rather than absolute judicial immunity, applies to administrative actions by judges (Forrester v. White, 484 US 219 (1988)).
The Court primarily attempts to defend the immunities of the judicial Defendants through authority pursuant to 42 USC Section 1983. However, jurisdiction to proceed against state actors is not restricted to Section 1983, and Plaintiff has brought this cause of action additionally and equally pursuant to the RICO Act (18 USC 1961, et seq). Pursuant to this authority, offices of public can be RICO enterprises (United States v. McDade, 827 Fsupp 1153, 1181 (E.D. Pa., 1993)), a government entity may constitute an enterprise within the meaning of RICO (United States v. Freeman, 6 F3d 586 (9th Cir, 1993)), and a RICO action may include courts (United States v. Angelilli, 660 F2d 23 (2nd Cir, 1981); United States v. Bachelor, 611 F2d 443 (3rd Cir, 1979)). Further, judges can be convicted of criminal charges of conspiracy based solely on conspiracy with their employees (See United States v. Hartley, 678 F2d 961, 972 (11th Cir, 1982) and RICO actions may be initiated against judges (See United States v. Shenberg, 89 F3d 1461 (11th Cir, 1996); United States v. Castro, 89 F3d 1443 (11th Cir, 1996). As such, Defendants are not immune from prosecution pursuant to authority under RICO.
Judges are not above the law (United States v. Isaacs, 493 F2d 1124, 1143 (7th Cir, 1974)). Judges must not be lawless and must follow the substantive law they are intended to administer (Hurlich, Regulations of Judicial Misconduct, 2 Law and History Review 79, 80 (1984)). “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest are bound to obey it” (Samuel F. Miller, cited in Davis v. Passman, 99 Sct 2264, 2277 (1979); Butz v. Economou, 98 Sct 2894, 2910 (1978)).
Obstructing justice is defined as “[i]mpending or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein” (Black's Law Dictionary, 6th Edition, page 1077). Under that definition, anytime a court official or judge denies an American citizen a constitutional or statutory right, justice has been obstructed by those who are supposed to administer it. A district court cannot decline to entertain an action as a matter of whim or personal disinclination (Public Affairs Associates v. Rickover, 82 Sct 580, 581-582 (1962)), as has Defendant Curtis in the refusal to rule upon appellate review of Defendant [*]'s restraining order, due process cannot be satisfied at a hearing wherein the judge has already predetermined the outcome (United States v. Cross, 128 F3d 144, n. 2 (3rd Cir, 1997)), as is the case with Defendant Ulbricht's prejudicial predisposition, and procedural due process is violated when issues are not heard before an impartial tribunal (See Tunkovich b. Kansas Bd. Of Regents, 159 F3d 504, 518 (10th Cir, 1988)), as is the case with each of the judicial Defendants wherein they have demonstrated a clear preexisting prejudice in matters concerning Plaintiff.
Though Plaintiff's actual complaint contains innumerable other examples of judicial impropriety, these examples set forth herein more than justify inclusion of the judicial Defendants within this cause of action. Plaintiff's complaint asserts that Defendant Stadler has collaborated with Defendant Allison to falsify and misdirect judicial proceedings; that Defendant Lympus has collaborated with other state officials to gain undue influence over witnesses (L.P. and T.P., Defendant [*]'s daughters) and has issued directives against Defendant [*] that intimidated her to withhold support and property from Plaintiff under fear of incarceration and false conviction; that Defendant Curtis continues to exert control over Plaintiff through control of Plaintiff's criminal cause, as exhibited by her continued jurisdiction over Plaintiff's upcoming post conviction relief proceedings; and that Defendant Ulbricht has acted contrary to all pretense of law in holding a hearing in which she barred Plaintiff from any pretense of due process.
Additionally, Defendant Curtis has demonstrated even more recent actions in issuance of an order adopting Defendant Edwards' efforts to impose far stricter probationary conditions upon Plaintiff, he which in effect confine Plaintiff since in or around February, 2010, to a 6' by 10' room for fear of otherwise being returned to prison, and further modifying Plaintiff's sentencing order to adopt the conditions of the restraining order issued by Defendant Ulbricht, all of which occurred in absence of any actual probation violation or disciplinary action.
Yet further, both federal and state immunity is overcome by the ultra vires doctrine (Painter v. Shahala, 97 F3d 1351, 1358 (10th Cir, 1996)), which is to say that immunity is not permitted in instances where the individual vested with authority acts beyond the authority of their office. Plaintiff's most fundamental claims rest upon the allegations that the judicial Defendants have acted outside the authority granted to them by the state and federal constitution. As such, the judicial Defendants are not immune from prosecution unless they can prove their conduct was permissible under constitutional and state law.
Clearly, the judicial Defendants are acting parties of the racketeering enterprise in question, have contributed to the pattern of racketeering, and as such are acting participants of a felonious criminal conspiracy. As such, said Defendants are not immune from prosecution pursuant to RICO. Consequently, Plaintiff objects to their dismissal.
IV. Eleventh Amendment Immunity
The Court has determined that governmental entities are immune from prosecution pursuant to the Eleventh Amendment. Again, the Court relies solely upon the authority of prosecution pursuant to 42 USC Section 1983, and completely disregards authority under RICO. As cited previously, offices of public officials can be RICO enterprises (McDade) and government entities may constitute an “enterprise” within the meaning of RICO (Freeman). Consequently, the immunity granted by the Eleventh Amendment does not exclude said Defendants from prosecution under RICO, and Plaintiff objects to their dismissal.
V. Defendant Dave Edwards
The Court has made a determination based solely off of 42 USC Section 1983 that restricts action against Defendant Edwards to actions as a state official. However, as stated ad nauseam heretofore, this action is precipitated under more than just Section 1983, but also pursuant to authority of RICO. As such, Defendant Edwards' conduct is not solely restricted to acting pursuant to some “established state procedure”, but instead pursuant to any action taken in furthering the pattern of racketeering activity.
Irregardless of the foregoing, the Court's reasoning is flawed in regards even to Section 1983's restrictions. Plaintiff has cited specific actions of deprivation and harassment, not predeprivations. Though certainly the past conduct is indicative of future conduct, the predeprivation argument is irrelevant in that Defendant Edwards has already established a predisposition to committing such actions in the first place. Further, any action of an officer acting under color of state law, which Defendant Edwards has done in each instance in his position as probation officer, is actionable under Section 1983, and as such the Court's effort to minimize said Defendant's liability is impractical and without merit.
Consequently, Plaintiff objects to the restrictions recommended by the Court in proceeding in filing a second amended complaint against Defendant Edwards.
VI. Defendant Peg Allison
The Court has determined that a cause of action against Defendant Allison is barred by “backwards-looking” claim restriction or by procedures still available within the presently pending property civil suit. Both positions are based upon truncated and incomplete information, and as such, conclusions based upon such faulty information has no foundation.
Yet again, the Court ignores the implications of RICO. A RICO action requires that a pattern of racketeering activity occur, and that establishment of a pattern of racketeering activity requires showing of at least two predicate acts committed within a ten year period (See, e.g., H.J. Inc, v. Northwestern Bell Telephone Co., 492 US 229, 237, 109 Sct 2893 (1989); Cullen v. Margiotta, 811 F2d 698, 713, cert. Denied, 483 US 1021 (1987)). Plaintiff's complaint and addendum provide well over the two minimum predicate acts required pursuant to RICO, but taking Defendant Allison's actions alone in the broadest context possible, said Defendant has been involved in the obstruction of two separate causes of action precipitated by Plaintiff, and such actions are more than sufficient to establish claim pursuant to RICO.
Specifically, Defendant Allison has refused to issue default judgment and summonses, has actually removed documentation from the court docket, and has conspired with at least two other Defendants to obstruct Plaintiff's right of access to the Court. Concealing documents alone is a violation of the obstruction of justice statute (United States v. Laurins, 857 F2d 529, 537 (9th Cir, 1988)). A clerk of court lacks the authority to refuse or strike a pleading presented for filing (McClellan v. Lone Star Gas Co., 66 F3d 98, 102 (5th Cir, 1995)), nor is a court clerk immune from suit (Raitport v. Provident Nat. Bank, 451 Fed Supp 522, 534-35 (E.D. Pa, 1978)).
Further, Plaintiff has pursued every conceivable remedy against Defendant Allison within the State. There is apparently no authority overseeing said Defendant save the judicial Defendants themselves, and complaint therewith falls upon deaf ears, and he has filed twice for supervisory control over said Defendant and been denied. Plaintiff has exhausted all conceivable remedies against Defendant Allison, as well as against all other Defendants herein, and for the Court to determine that Plaintiff has not is in blatant disregard of the actual content of Plaintiff's complaint.
Consequently, Plaintiff objects to the Court's recommendations of dismissal.
Based upon the foregoing, the Court's Findings and Recommendations are based upon an incomplete review of the record and upon the omission of considerations of law, in particular the authority pursuant to the RICO Act. Simply put, the Court's opinions are flawed and its conclusions lack foundation to be acted upon. As such, Plaintiff objects to the Court's Findings and Recommendations and requests instead that the Court grant him leave to file a second amended complaint in order to join issues presented between his First Amended Complaint and Addendum, as well as to provide additional information that has not yet been presented to the Court.
Plaintiff above named does hereby attest under penalty of perjury that the foregoing is true and correct to the best of his ability to present and that this is respectfully submitted on the 12th day of March, 2010.