Appellant Brief 11th Cir. Court Of Appeals

STATEMENT OF THE ISSUES 1. Did the District Court abuse it‟s discretion by ignoring that Plaintiff is a member of a protected class of persons after being presented with supporting evidence? Even assuming that the District Court did not err, when a disabled individual is denied Federal Programs for which he qualifies, is it abuse of discretion or err for the District Court not to address the issue when the individual shows that he was denied programs which receive Federal funding and for which he is qualifies and is entitled? 2. Did the District Court err or abuse it‟s discretion by failing to rule on issues of Statute of Limitations and or Immunity until after the Discovery period had ended? Even assuming that the District Court did not abuse it‟s discretion or err by failing to rule until Discovery had passed, did the District Court abuse it‟s discretion or err when it determined that the statutes were not tolled and failed to address all of Plaintiffs arguments for tolling? 3. Did the District Court abuse it‟s discretion by Dismissing the case against all Defendants on the grounds of statute of limitations and or immunity? 4. If an Appellant can be Denied Motion To Proceed on Appeal In Forma Pauperis under 42 U.S.C.§1915, does the trial Court abuse it‟s discretion or err by finding the statute of limitations is not tolled while exhausting all grievance or administrative procedures before filing suit, which is also part of §1915?

5.

Did the District Court abuse it‟s discretion or err when it determined that the County entities are an Arm of the State?

6. Did District Court abuse it‟s discretion or err by Denying Default when Defendants neither filed a responsive pleading nor were ever represented by legal counsel? 7.

Did the District Court abuse it‟s discretion or err when it determined that Probate Court has the same power and authority as State Court or Superior Court?

8. Is it a violation of Due Process of Law and Equality for a Court or Clerk of the court to hold without filing Motions, Pleadings, etc., until after an Order has been signed so that the Judge‟s Order will state that the party failed to file any documents? 9. Did the District Court abuse it‟s discretion when determining that the State is immune from suit when Appellant relied upon and cited 42 U.S.C.§12101 which clearly states that the State is not immune? 10. Did the District Court err by going against past Precedent of this Court and the Supreme court, and by ignoring the Rules of Stare Decisis? 11. Did the District Court abuse it‟s discretion when determining that Appellant‟s request for appointment of legal counsel did not warrant a response?

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STATEMENT OF THE CASE December 5, 2006 James B. Stegeman(Stegeman) filed a Pro Se Complaint in US District Court for on-going and continuous Civil and Constitutional Rights Violations and other causes against State of Georgia, Ga. Dept. of Human Resources(DHR), DeKalb County Dept. Family & Children Services(DFACS), Superior Court Stone Mtn. Judicial Cir.1; DeKalb County, DeKalb Probate Court(Probate Court), DeKalb Probate Judge Rosh(Judge Rosh or Rosh), DeKalb Solicitor‟s Office(Solicitor‟s Office), EMS Medic Dennis Carlock(Carlock), DeKalb Fire Dept. Capt. Hughett(Hughett);2 and City of Stone Mountain Police Officer Porter(Porter). All Defendants were sent Notice of Lawsuit and Request For Waiver of Service. Within the 120 days to serve defendants, Stegeman took necessary steps to effect service upon all Defendants. For fear from retaliation January 15, 2007, Stegeman filed Motion for Preliminary Injunction and Temporary Restraining Order, requested Order to Show Cause (R2-6). After ten days, Stegeman called the Clerk about a hearing, he was informed he would be contacted.

The Court‟s Order shows: “The Court …

attempted to schedule … soon after it was filed, but Plaintiff was unavailable for a hearing.” Stegeman fails to understand how the Court “attempted, he can be reached 24/7 via telephone, due to his disability he rarely leaves the house, when 1

2

These defendants referred to hereinafter as “State” or “The State” These defendants referred to hereinafter as “County” or “The County” -3-

he does BellSouth forwards calls to a cell phone; he received no call, no document from the Court; Docket reflects no attempt or a hearing.(R5-87-29). Due to lack of resources,3 Stegeman a disabled male (R1-1-8,R1-1-#4) as recognized by the ADA and Social Security Acts, with multiple disabilities (R349-3), a member of Federally protected class. He has been denied programs which receive Federal funding; forced to file suit and Appeal as Pro Se, against his wishes and better judgment. February 27, 2007 Stegeman filed Motion for Exemption from Pacer fees, for viewing only his case (R2-26); District Court failed to rule on the Motion until July 17, 2007 (R5-87-33) after it no longer mattered. Requests for appointment of legal counsel and or assistance were ignored(R3-49-2,3,15). March 23, 2007 Stegeman Petitioned the District Court for permission and assistance to have evidence presented to the Federal Grand Jury (R4-58) for crimes committed against him. The denial shows “This Court is not the proper venue for Plaintiff to report criminal activity. Plaintiff may report crimes to the appropriate law enforcement authorities.”(R5-87-33) Stegeman filed Motion for Default against the State (R4-68), Solicitor‟s Office, and State Court (R4-67). District Court Denied the Motion against the State, (R5-87-29) Solicitor‟s Office, (R5-87-32) and State Court (R5-87-31) failing

3

Receives less than $7500 annually from Supplemental Security Income -4-

to address all grounds shown why they were in default. More than once for the Clerk was requested to correct several items on the Docket. Sometime after April 24, 2007 R3-49 (Objection to County Motion To Dismiss) and R3-49(2) (Addendum) filed March 5, 2007 were omitted from Docket. Stegeman asked to have the documents re-inserted back into records to reflect the filings, the Docket was neither corrected nor R3-49, R3-49(2)4 reinserted. Stegeman Motioned to have Docket corrected (R5-96). As of March 20, 2008 R3-49 and R3-49(2) had not been re-inserted and Docket not corrected. The record reflects: Stegeman filed Waivers of Service (R2-2, R2-3,R2-4,R2-5) which the State‟s attorney Mr. LaValle5 filed rather than mail to Stegeman to file as shown in Fed. R. Civ. P. Rule 4.(d)(4). District Court improperly allowed the State to Waive Service (R5-87-30). NOTICE Of Filing additional summons (R18), and (R25) is incorrect, Stegeman requested the Clerk sign and seal Summons and return to him in order to effect proper service; the Clerk filed the unsigned, unsealed, un-served Summons. The Docket reflects “Return of Service to USA” (R2-30; R2-31;R2-32;R2-33;R3-47;R3-48); USA was never named. Certificate Of Service by County, filed twice (R4-63;R4-64). Stegeman received one set from County, he requested the record to so reflect (R4-66).

4

Stegeman has reproduced R3-49 and R3-49(2) in Record Excerpt. Although Mr. LaValle, filed documents for State Defendants, he also claimed that he was not representing “the State” (R2-19) 5

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The District Court failed to address or Rule on any Motions until the final order, July 16, 2007 dismissing the case in favor of all defendants on the grounds of statute of limitations and immunity re-wording6 and misconstruing parts of Complaint and Exhibits violating Stegeman‟s Rights. District Court granted all parties‟ Motion to Dismiss on the grounds of Eleventh Amendment Immunity and or Statute of Limitations (R5-87-13,-15,-20,21,-28,-33,-34) ignoring that Stegeman showed that neither were viable grounds. STATEMENT OF FACTS Stegeman provided undisputed evidence7 that while acting under color of law or color of authority Porter, Carlock and Hughett, DFACS, Rosh and Superior Court all of who have knowledge of proper procedure and jurisdiction concerning Georgia‟s Family Violence Act,8 obstructed justice by violating Georgia‟s statute on FVA.(R1-1-13,-14,-15,-16,-17,-18,-19,-20,-38,-39,-42).

June 2002 Officer

Porter falsified FV Report, Supplemental Report (R1-1-14; R1-1#10; R3-40-9,-10,11,-12,-13,-14) Porter and Hughett agreed the aunt‟s life at risk from Stegeman. Carlock‟s EMS Report the aunt would die under nephew‟s care (R1-1-#9). 6

District Court mis-quoted what was actually said. Undisputed evidence reflects Exhibits attached to the Complaint, documents supporting the claims. The Defendants did not dispute the evidence, to the contrary Defendant‟s Preliminary Reports and Discovery Plans clearly state that there are no documents other than the ones that Plaintiff had already submitted to the Court (R3-44,R3-45, R4-55,R4-57,R4-60,R-61) 8 Corresponding Statute and Rules of Family Violence Act, are reproduced in Addendum 7

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Porter sent FV Report to DFACS‟ Sandra Al-Khaja (R1-1-14;R1-1-#10), AlKhaja Petitioned Probate for Emergency Guardianship Hearing for an Allegedly Gravely Incapacitated Adult (R1-1-14;R1-1-#12); hearing at Northside Hosp., presided over by Probate Clerk Rosh9 acting as Tempore Probate Judge, at a hearing lacking jurisdiction (R1-1-15,-16;R3-49-5,\fn8/), judged Stegeman guilty of felonies (R1-1-15,16), his Durable Power of Attorney (R1-1-9,-#6) was revoked (R1-1-15;R3-49-9). In violation of Ga. And U.S. Constitutions10, Stegeman, never allowed to face his accusers Carlock, Hughett, Porter, denied the Right to access all information used by Carlock, Hughett, Porter, and Rosh to judge him guilty (R3-49-9). County Guardian of Property appointed for aunt who was taken, hidden, never seen alive again by family (R1-1-15, -17). The case never closed, Stegeman never cleared. Ga. Statutes were violated regarding hearings of the kind Rosh presided over ( R1-1-14;R1-1-#11; R1-1-15; R3-49-9) The Guardian realized that Stegeman and McDonald had discovered that he had taken over their bank accounts (R1-1-18; R3-49-12), the Guardian filed suit September 2002 in Superior Court against only Stegeman (R1-1-18), then used Stegeman and McDonald‟s assets to sue Stegeman. 9

Stegeman‟s answer and

According to Probate Clerk Jeryl Rosh who presided over the hearing, now Probate Judge Rosh, she and Al-Khaja had been friends for eighteen years at the time of the hearing.(Compl.Ex.7) 10 Pertinent Constitutional Rights violated are reproduced in Addendum. -7-

counter-suit exhibited documented proof that the accounts did not belong to the ward, proof of where assets had come from; complained that Stegeman‟s Rights had been violated, he had been denied the right to present evidence on his behalf, requested that Superior Court protect the Joint Tenants With Rights of Survivorship accounts from further waste by guardian; all of which were ignored (R1-1-18, -#15). DeKalb Solicitor‟s Office Investigator Chanda Sukhanath from the Elder Abuse division conducted secret investigation/interview with the aunt March, 2003 which showed that Stegeman was not guilty as alleged, and aunt was mentally incompetent (R1-1-18;R1-1-19,[*fn19]). Because Stegeman is a disabled adult, Solicitor‟s Office has a duty to protect him as well as elderly, the Investigator neglected the duty of stopping malicious prosecution of Stegeman, it was evident that he was being abused and exploited under Ga.‟s Disabled Adult and Elder Persons statutes11, http://www.dekalbsolicitorgeneral.org/investigative.php: “Investigative Division: The Investigative Division of the DeKalb County SolicitorGeneral‟s Office is dedicated to the thorough, efficient, and fair investigation of the cases handled by our office. Our mission is to simply seek the truth in the interest of justice.” “As professional law enforcement officers, our investigators are tasked with seeking the truth in every case. Most often their investigations strengthen the case for our prosecutors in the courtroom, but just as importantly, an investigation may lead to 11

Controlling statutes, rules, procedures are reproduced in Addendum. -8-

the conclusion that a case should not be prosecuted. Simply put, we seek the truth.” The transcript and information withheld from Stegeman‟s knowledge and the civil action until after January, 2004 Probate hearing (R1-1-19, [fn20]; R1-120); none of the findings were ever used because it showed Stegeman innocent and Solicitor‟s Office was protecting Rosh and the Guardian, thereby violating due process and equal protection (R1-1-18; R1-1-19); Investigator also could have prevented the aunt‟s death (R1-1-19). Within nine months, April 17, 2003, Stegeman‟s aunt passed away within from an untimely death. (R1-1-20; R1-1-24, -#24) The death concealed from all family, Death Certificate falsified. April 21, 2003, Motion to Compel hearing, Superior Court, the death was announced, complainants admitted they had no proof of wrong-doing against Stegeman (R1-1-21). The Order given orally at the hearing gave ten days to substitute. Judge Hunter had received letter from Guardian‟s attorney (R1-1-22, -#18). The written Order received had changed to reflect thirty days to substitute. The Original Will signed 1992 was on file at DeKalb Courthouse, submitted by Stegeman to Probate. A newly made Will submitted to Probate by Frank Lillig (R1-1-22). Stegeman also filed a Caveat (R1-1-22). Lillig Petitioned for Temporary Administration and in Superior Court to substitute, the petitions made fraudulent conveyances to both Courts (R1-1-23, R1-1-#16,-#22); both Petitions -9-

were granted May 5, 2003 with the assurance that the Wills would be settled within 180 days (R1-1-22, -#18). Eleven months later the hearing about the Wills had yet to conclude. January 14, 2004 Probate hearing for the Wills (R1-1-24, -#25) was continued until a later date.12 Due to lack of resources, Stegeman was forced to settle the Superior Court suit, agreement signed March 25, 2004 (R1-1-25). Neither attorney would file the agreement to end the case. (R1-1-25,-#26), yet the Withdrawal of Caveat, Stegeman‟s only obligation was quickly used on April 5, 2004 (R1-1-25). Stegeman, exploited for two and a half years during vexatious, frivolous litigation (R1-1-18), six months of which were after both attorneys signed Memorandum of Understanding (R1-1-25) and after Stegeman honored his obligation, then opposition refused to honor their obligation. September 2004, after many attempts to regain the bank accounts, Stegeman saw that the civil action was still showing “Open” a hearing date for October 2004. Stegeman was forced to find a new attorney to file the documents to close the case (R1-1-27).

Superior Court refused to Grant Motion to Enforce the original

agreement signed by both attorneys (R1-1-27,-#31); a new, less favorable agreement had to be drawn up (R1-1-28, -#32). November 2004, a year and a half after the aunt‟s death the County 12

Due to attorney having to attend criminal hearing. Will hearing never reached conclusion. - 10 -

Guardian was Discharged by retired Judge Marion Guess13 (R1-1-28, -#34). April 2005 Stegeman as a creditor, filed Objection to Lillig‟s Discharge from Administration of the aunt‟s estate on the grounds that no bills of the estate had not been paid, Stegeman and McDonald had been paying them. (R1-129,[*fn31]). After 6 months, Lillig filed for Summary Judgment. Probate Court Clerk Ms. King and staff attorney told Stegeman they would not allow him to file responsive documents (R1-1-30). Stegeman was finally allowed, the documents were hand delivered, and stamped Filed. The Court kept the documents from the file until after the court found in favor of Lillig claiming that Stegeman had filed no documents (R1-1-30,R1-1-31, -#35,-#36). November 28, 2005, within the proper time to file, Stegeman filed Notice of Appeal and paid the fee (R1-1-31). The check was sent back after several weeks and Stegeman was told that he could not Appeal (R1-1-31,-#37). Stegeman Appealed directly to Superior Court Judge Rosh‟s Order on Summary Judgment, and “Void Judgment at Law”. Civil Action File No.: 05cv13909-09. Stegeman has heard nothing to date. (R1-1-31,-#38). Jan. 3, 2006 Stegeman and McDonald filed suit against Wachovia concerning missing assets (R1-1-32) that Judge Hunter failed to protect.14

13

O.C.G.A.§15-9-16. A retired Judge of the Probate Court shall be vested…for the purpose of performing marriage ceremonies. - 11 -

Wachovia improperly removed the case to US District Court, and filed to the wrong Judge (R1-1-23,-33,-#42). February 2006, while Removal was pending, Superior Court Ordered the case closed (R1-1-33, -#43). Stegeman filed Notice of Appeal to Supreme Court, paid Appeal fees, the Appeal never sent. (R1-1-33, #44; R1-1-34, -#46). A bill to Ga. Court of Appeals was sent to Stegeman, that bill was paid; the Appeal never sent. Through documentation, Stegeman has proven that: 1) he has been denied access to the Courts; 2) he was denied Appeals by both Probate (R1-1-31) and Superior Courts (R1-1-33; R1-1-34; R1-1-35); 3) he has been denied State “programs” that receive Federal funding, for which he is eligible and qualifies; 4) he has been treated differently than others in similar situations; 5) he has been continually discriminated against and treated “differently” than others in similar situations by Superior Court15 Most

recently

Superior

Court

shows

the

continued

treatment.

McDonald/Stegeman v. GA Power by holding documents delivered to Superior Court March 8, 2008 and held them until March 12, 2008; opposing parties‟ documents are filed the day they are signed and mailed to the Court.16 Stegeman, continually told that nothing could be done about Porter, Hughett

14

District Court states that Judge Hunter froze the accounts (R5-87-7, this is not a true statement, she was asked to protect the accounts and did nothing. 15 (R1-1-31, -32, R1-1- # 39; R1-1-33, -#42, -#43, -#45; R1-1-34, -#46; R1-1-35, -#48, -#49; R1-1-36, -#50). 16 Superior Court Docket info Reproduced in Addendum - 12 -

and Carlock‟s false allegations and falsified documents in Public while civil actions were pending Once the civil action was closed, Stegeman tried to resolve the matter and clear his name through Administrative remedies (R1-1-#5,6,7, Ex.“E”); found the Family Violence incident has never been closed. There are current and on-going pending civil actions, direct result of Porter, Hughett and Carlock‟s allegations, falsified reports and obstruction of Justice (R11-37, -#51). Stegeman has been denied due process of law; denied the right to face his accusers in a Court of law; denied the right to be innocent until proven guilty; denied immunities; the original documents continually used against him. (R1-1-38, -39, -40) Probate and Superior Courts have denied Stegeman Appeals of Final Orders. Stegeman has continually been discriminated against and treated “differently” than others in similar situations by State Court (R1-1-37) The Hicks v. Stegeman case has had no activity for over a year. July 2005 until January 2006 Stegeman bedridden, attempted to have the Civil Action written and filed, forced to do so without the aid of an attorney. 17 STANDARD OF REVIEW This Court reviews the district court's "interpretation and application of a statute of

17

Many times since 2002, Stegeman has requested Legal Aid assistance, he qualifies, is eligible for the benefits of, and the Federal Govt provides Federal funding to, he has been denied every request. - 13 -

limitations de novo." United States v. Carrell, 252 F.3d 1193, 1198 (11th Cir. 2001). Because §1983 itself does not have a statute of limitations, federal courts borrow statutes of limitation and tolling provisions from state law. Bd. of Regents of Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478, 483-84, 64 L. Ed. 2d 440, 100 S. Ct. 1790, 1794-95 (1980). This Court reviews de novo a district court‟s ruling regarding Eleventh Amendment Immunity. Hundertmark v. Fla. Dep’t of Transp., 205 F.3d 1272, 1274 (11th Cir. 2000).

The circuits that have addressed the issue have

“unanimously concluded that „the entity asserting Eleventh Amendment immunity has the burden to show that it is entitled to immunity.‟” Woods v. Rondout Valley Central School Dist. Bd of Educ., 466 F.3d 232 (2d Cir. 2006) (quoting Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002)). SUMMARY OF ARGUMENT Stegeman has suffered from discrimination and unequal treatment by the Appellees for quite some time and the treatment continues to date. Both Congress and The Georgia General Assembly has attempted to place safeguards against exactly what has happened to Stegeman by removing Eleventh Amendment Immunity for violations of Civil and Constitutional Rights of the disabled. When County and State Officials condone and aid in such behavior, Judges allow documents and Appeals to be withheld, the system and Justice fails.

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Stegeman has shown total failure of the system and he continues to suffer the failures through no fault of his own. With documents removed from the Docket, Stegeman could neither receive a fair Ruling on his case, nor a fair Ruling on his Motion For Leave To Appeal On Forma Pauperis since the Courts are to consider all documents when denying for frivolity, thereby denying due process, access to and fairness of the Courts. ARGUMENT AND CITATIONS OF AUTHORITY I.

ELEVENTH AMENDMENT IMMUNITY Stegeman is a disabled male as recognized by the State of Georgia and the

United States, with multiple disabilities, receiving Supplemental Security Income (R1-1-8) A.

Congress’ Removal Of State’s Eleventh Amendment Immunity

A state is not immune under the Eleventh Amendment from an action in State or Federal Court, including remedies both at law and equity (R3-49-13; R349-[2]-2, -3; R4-58-3; R4-58-2). 42U.S.C. §1220218 & 12202. State immunity. “A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court … In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available … to the same extent as … in an action against any public or private entity other than a State.” 18

42 U.S.C. §12202 is reproduced in Addendum - 15 -

See also: “United States v. Georgia (04-1203) 120 Fed. Appx. 785, reversed and remanded. Syllabus [Scalia] Concurrence [Stevens]; Stevens J. concurring; Supreme Court Of The United States; Nos. 01-1203 and 01-1236; CORNELL LII; [January 10, 2006]: “Justice Stevens, with whom Justice Ginsburg joins concurring.” “The Court holds that Title II of the Americans with Disabilities Act of 1990 abrogates state sovereign immunity at least insofar as it creates a private cause of action for damages against States for conduct that violates the Constitution Ante, at 7.” It is without question that Congress empowered the United States Government to protect disabled persons, their property and Rights under the Fourteenth Amendment (R3-49-13; R3-49-[2]-2; R4-58-3; R4-58-1,-7). Title 42, Chapter 21, Subchapter V §2000d.-7. (a)(1).19 A State shall not be immune under the Eleventh Amendment of the Constitution from suit in Federal Court. In Congress‟ efforts to ensure protection for disabled and their Rights Congress removed State‟s Immunity and went on to prohibit against retaliation and coercion (R3-49-[2]-3; R4-58-1,-8). DHR has authority and obligation under O.C.G.A. §30-5-1 to §30-5-1020 of The Disabled and Elder Persons Act to protect disabled adults from abuse including exploitation, essential services and protection of their Rights (R2-19(2)4). The State of Georgia, DHR, DFACS all receive Federal Funding toward

19 20

§2000d.-7 is reproduced in Addendum Reproduced in Addendum - 16 -

programs for disabled which Stegeman is qualified and eligible for and has been denied, no reason given. The Federal govt. has removed Georgia‟s immunity under the Eleventh Amendment. B.

County and County Entities Are Not An Arm Of The State

DeKalb County In support, Stegeman shows the following: Abusaid v. Hillsborough County, et., al. 2005 U.S. App. LEXIS 6341,*;405 F.3d 1298; 18 Fla. L. Weekly Fed. C 436 at [*8] which held to Manders, 338 F.3d at 1390: “To determine whether the defendant … acts as an arm of the state, we conduct a four-factor inquiry, … (1) how state law defines the entity; (2) what degree of control the state maintains over the entity; (3) the source of the entity's funds; and (4) who bears financial responsibility for judgments entered against the entity. See Manders, 338 F.3d at 1309.” District Court claimed that DeKalb County, DeKalb Probate Court, DeKalb State Court and DeKalb Solicitor‟s Office are an “arm of the state”. 1) The State defines DeKalb County as a body corporate. 2) The State does not control DeKalb County, it is controlled by Vernon Jones DeKalb County CEO, the County Commissioners, and the County.

3)

DeKalb County provides funds for the

County and pays the salaries of these County Defendants.

4) The financial

responsibility for these County Defendants is DeKalb County, not the State. See also:

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Grech v. Clayton County, Georgia, 335 F.3d 1326 VERSUSLAW 21(11th Cir. 07/07/2003) No.: 01-13151 At [17]: ““Under Georgia law, the defendant Clayton County is a “body corporate” capable of suing and being sued and is headed by the county governing body, ….” “Ga. Const. Art. 9. §1. para. 1 (“Each county shall be a body corporate and politic with such governing authority… as provided by law.”); O.C.G.A. §§ 36-13 (“Every county is a body corporate, with power to sue or be sued in any court.”); 1-3-3(7) (defining “County governing authority” as the “board of county commissioners, the sole county commissioner, or the governing authority of a consolidated government”).” At [219] n.60: “As ultimately adopted, Article IX, Section I, Paragraph III of the Georgia Constitution names as county officers "[t]he clerk of the superior court, judge of the probate court,…” At [222] n63: “… we must consider under McMillian, such as whether the county or state paid his salary and whether he reported to any state officials…” “In addition …, the court referenced the county status of the probate judge, the clerk of the superior court, and the tax officials … in article IX of the Georgia Constitution. Compare Truesdel, 197 S.E. at 786 (Ga. 1938) with Ga. Const. Art. IX, Sect. I., Par. III.” See also: Abusaid v. Hillsborough County Board of County Commissioners, 405 F.3d 1298 VERSUSLAW (11th Cir. 04/15/2005)22 At [84] “Regardless of the confusion, … the County enjoys neither Eleventh Amendment nor state law sovereign immunity. …, it is by now well established that "[t]he bar … extends to … in appropriate circumstances, but does not extend to counties and 21 22

http://www.versuslaw.com - 18 -

similar municipal corporations." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977) (citation omitted). Accordingly, "the Court has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions …, even though such entities exercise a 'slice of state power.'" Hess, 513 U.S. at 43 (citation omitted); see also Hutton v. Strickland, 919 F.2d 1531, 1542 (11th Cir. 1990) ("This court specifically has recognized that the Eleventh Amendment does not prevent an award of damages against a county.")” At [86]: “… since the Court has held that municipal corporations and similar governmental entities are "persons," see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663, 98 S. Ct. 2018, 2021-22, 56 L. Ed. 2d 611 (1978); cf. Will[v. Michigan Dep't of State Police, 491 U.S. 58, 69 n.9, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)]; Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274, 280-281, 97 S. Ct. 568, 572-573, 50 L. Ed. 2d 471 (1977)” “"Municipal defenses -- including an assertion of sovereign immunity -- to a federal right of action are, of course, controlled by federal law." Owen v. City of Independence, 445 U.S. [622, 647 n. 30, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980)]. "By including municipalities within the class of 'persons' subject to liability for violations of the Federal Constitution and laws, Congress -- the supreme sovereign on matters of federal law --abolished whatever vestige of the State's sovereign immunity the municipality possessed." Id., at 647-648, 100 S.Ct., at 1413-14 (footnote omitted).” DeKalb Probate Court District Court granted the Probate Court, Eleventh Amendment Immunity claiming it is an arm of the State, (R5-87-23) Probate Court is not and cannot be an arm of the state; in support Stegeman shows the following: “The Probate Court and the Magistrate Court of a county are funded entirely by the county. That includes the salaries for the - 19 -

judges of these courts.” Your Guide to the Georgia Courts (Atlanta: Administrative Office of the Courts, 2003). <www.georgiacourts.org> “Our courts have authority … as set forth in the Constitution of the State of Georgia. Limited jurisdiction courts — municipal, magistrate, probate, juvenile and state courts… jurisdiction in the probate of wills … decedents' estates is designated to the probate court of each county…. involuntary hospitalization …appoint a legal guardian … issue marriage licenses and licenses to carry firearms …” “…Limited jurisdiction courts are funded solely by city or county governments.” The Judicial Council/Administrative Office of the Courts, 244 Washington Street, Suite 300, Atlanta, GA 30334, 404-656-5171; www.georgiacourts.org State Court The Trial Court gave State Court Eleventh Amendment Immunity claiming it is an arm of the State, (R5-87-31) State court is not and cannot be an arm of the state. In support, Stegeman relies on the foregoing paragraph and shows the following: “Our courts have authority … as set forth in the Constitution of the State of Georgia. Limited jurisdiction courts … and state courts…” “State Courts exercise limited jurisdiction within one county… is established by local legislation… judges are elected to four-year terms in county-wide nonpartisan elections…”*fn13 “…Limited jurisdiction courts are funded solely by city or county governments.” The Judicial Council/Administrative Office of the Courts, 244 Washington Street, Suite 300, Atlanta, GA 30334, 404-656-5171; <www.georgiacourts.org> County Solicitor’s Office

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The Trial Court gave the Solicitor‟s Office Eleventh Amendment Immunity claiming it is an arm of the State, the Solicitor‟s Office is not and cannot be an arm of the state because the County Police Dept. is not an arm of the state. In support, Stegeman shows the following: “The County Judges are State Court Judges, Probate Judges and Magistrate Judges and the County prosecutors are the Solicitors General.” Your Guide to the Georgia Courts www.georgiacourts.org C.

Judge Rosh/Probate Jurisdiction

Clerk Rosh was not elected Judge until 2004 violated Stegeman‟s Rights and Immunities Judging Stegeman guilty of Family Violence and fraud. Only the District Attorney‟s Office and Superior Court have jurisdiction in Family Violence. District Court claimed that even if Rosh was not entitled to Eleventh Amendment Immunity, she would be entitled to Judicial Immunity (R5-87-24): “It is well-settled that judges are absolutely immune from liability for damages for their judicial acts. Mireles v. Waco, 502 U.S. 9, 9 (1991). A plaintiff may overcome a defendant‟s judicial immunity only under two circumstances: “First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge‟s judicial capacity. . . . Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 1112.”

The facts clearly show that Probate Courts in Georgia lack subject matter jurisdiction for Family Violence and acts of fraud. District Court goes on to state:

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“Judge Rosh appointed a guardian for Ms. Caffrey pursuant to O.C.G.A. §29-514.” This is a false statement, O.C.G.A. §29-5-1423 was not a Georgia statute at the time, Stegeman provided undisputed evidence of the statute that was in effect and used.

II.

STATUTE OF LIMITATIONS Statute of Limitations is not a viable defense in the current action. District

Court failed to address several of Stegeman‟s reasons that the defense should not hold up in this case. A.

Pending Criminal Charges

Stegeman has shown that he was accused of Family Violence and felony fraud, that only the District Attorney and Superior Court24 have jurisdiction for such cases. Stegeman has further shown that Porter violated mandate that Family Violence Reports are handled only by the DA, that a thorough investigation be done, and a Court hearing in Superior Court be had. Stegeman he has never been cleared, and the case never closed. See the following:

23

Laws 2004, Act 460, § 1, eff. July 1, 2005. § 29-5-14. Emergency conservators; petitions; affidavits. O.C.G.A. §29-5-6 and §29-5-8 were the controlling statutes in 2002, see: (R1-1-14, -# 6,-# 7) 24 O.C.G.A.§19-13-2. Jurisdiction of superior court (a) Except for proceedings involving a nonresident respondent, the superior court of the county where the respondent resides shall have jurisdiction over all proceedings under this article. - 22 -

Banta v. Quik-Thrift Food Stores, Inc. et al., 76165. (187 Ga. App. 250) (370 SE2d 3) (1988): “2. Appellant argues that dismissal by the prosecutor's office was not sufficient to terminate the prosecution against her, and therefore the statute of limitations for bringing this action did not begin to run at the time of that dismissal, but only when the time had expired, pursuant to OCGA 17-3-1, during which she could have been prosecuted. We agree and reverse.” “"A cause of action for malicious prosecution does not accrue until the underlying criminal prosecution is ended. [Cits.] Hence a suit for malicious prosecution must be brought within 2 years after the underlying criminal prosecution terminated in plaintiff's favor. [Cit.]" Id. at 31. The issue for determination, therefore, is when, if ever, the prosecution terminated in appellant's favor.”” “In the case sub judice, the evidence proffered by appellees in support of their motion for summary judgment did not establish that there had been a "judicial ascertainment" of the fact that the prosecution against appellant had been dismissed. No order had been entered, and the record does not indicate any filing with the court.” “The trial court's judgment must therefore be reversed. See Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987).” To date, there has been no "judicial ascertainment" of the fact that the prosecution against appellant had been dismissed in a Court of competent jurisdiction; No order entered, and the record does not indicate any filing with the court. B. Administrative Remedies Stegeman has proven to the District Court that Administrative remedies were pursued prior to filing the civil action (R1-1-#7,-#8). When all administrative remedies were exhausted, Stegeman filed the case. Although Stegeman was not a

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prisoner, he has been denied by both this Court and the District Court the status of forma pauperis under 1915, the Prisoner Litigation Reform Act, and treated as a criminal and prisoner, therefore the same must apply to exhaustion of administrative remedy. 2005 U.S. App. LEXIS 11463,*;136 Fed. Appx. 267 Vacated and Remanded “[*7] There is, however, a key problem in the magistrate judge's analysis. The magistrate judge failed to address whether the time period may have tolled while Howell pursued administrative remedies. Howell argued before the magistrate judge, and argues to this court, that the statute of limitations should have tolled while he pursued administrative remedies, and that officials never responded to his grievances. Based on the factual record before us, we cannot make a determination as to whether tolling might be appropriate. See Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003); Leal v. Georgia Dep't of Corr., 254 F.3d 1276, 1279-80 (11th Cir. 2001).” B.

Continuing Tort

It has been shown that Georgia recognizes the theory of continuing tort, for this reason, the statutes of limitations should be tolled as shown in the following: Tri-County Investment Group, LTD. v. Southern States,. A97A2178. (231 Ga. App. 632) (500 SE2d 22) (1998) "…continuing tort" exists in this state. Corp. of Mercer Univ. v. National Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988); Tucker v. Southern Wood Piedmont Co., 28 F3d 1089, 10901091 [1] (11th Cir. 1994). "Under Georgia law, a cause of action for a tort that is continuing in nature -- for example, the frequent runoff of contaminated water across land, or . . . the underground leakage of hazardous waste onto adjoining property -- accrues at the time of continuance. [Cit.] Therefore, the plaintiff in a continuing tort suit can recover for any damages that were - 24 -

suffered within four years prior to the filing of the suit. [Cit.]" Id. at 1091 [2, 3]. See also City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897) ("[w]here a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. [Cit.]"); Southfund Partners v. City of Atlanta, 221 Ga. App. 666 (3) (472 SE2d 499) (1996). C. Disability/Multiple Disabilities The trial Court contends that Stegeman never showed that his disabilities prevented him from filing suit before statute of limitations had run. (R1-1-37). This too is not a correct assessment of facts. Stegeman presented to the Court that he had had to file for leave of absence in Superior and State Courts due to being bed-ridden. Stegeman has attached in the Addendum a copy of Dr. Glaccum‟s Affidavit as presented to Superior and State Courts with his Petition for Leave of Absence, Dr. Glaccum was desperately attempting to help Stegeman deal with pain and be able to walk again. Stegeman has shown that he pursued every possible remedy, has shown that he lives on less than poverty level proceeds, lacks the assets that legal counsel demands before the will consider filing suit, that programs which receive Federal Funding for persons eligible for Legal Aid have denied him help, In further support, Congress has determined that disabled individuals are among the poorest individuals in our society, and “relegated to a position of political powerlessness in our society”, “occupy an inferior status in our society, - 25 -

and are severely disadvantaged socially, vocationally, economically, and educationally”, “unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous”, “have often had no legal recourse to redress”.25 III. A.

DEFAULT

State Court and County Solicitor’s Office

Although State Court and Solicitor‟s Office were neither represented by counsel, filed a responsive pleading (R4-67) nor filed Objection to Motion For Default Judgment, the trial court dismissed the action against them (R5-87-31,32) ignoring not only it‟s own past rulings, but past rulings of Appellate Courts as well. Stegeman shows the following in support: Williams v. DeKalb County, N.D. Ga. 1:05cv3056WSD 01/04/2007: \fn1/: “Plaintiff has represented … that Defendant Jones has failed to respond to the Complaint in his individual capacity …the Clerk of the Court is DIRECTED to enter default … Because Plaintiff has not requested entry … sum certain …the Court will schedule a hearing…” In re Knight , 883 F.2d 1515.1516 (11th Cir. 1987) “… where party offers no good reason for late filing of answer, entry of default judgment appropriate” See also:

25

§12101 Reproduced in Addendum - 26 -

First City Nat’l Bank of Fort Worth v. Cook, 117 F.R.D. 390 (N.D. Tex 1987) “… default judgment appropriate where party served has failed to answer.” See also: FRCP Rule 55 . Default “(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by Affidavit or otherwise, the clerk shall enter the party's default. B. The State Stegeman realized he had improperly mailed requests for Waiver of Service of Summons to The State, Attorney LaValle mailed the Waivers to the Clerk rather than to Stegeman to file. January 23, 2007 Plaintiff realized his error and had sent to the Clerk Summons for all Defendants, except Officer Porter. March 05, 2007 Return of Service for "State Defendants" was filed along with Affidavit of Diligence from Process Server verifying that Mr. LaValle had left town for more than a week without Leave of Absence filed with the Court (R4-68-4). The State filed their Pre Answer Motion to Dismiss before proper service had been effected(R3-47), at that time District Court lacked jurisdiction over them and their answer amounted to having filed nothing, they filed Motion to Dismiss before they were part of the case. Further, Stegeman‟s Reply to State‟s Response to Motion For Default (R4-78-3) shows that until Service had been properly effected that District Court had no jurisdiction over the defendants. Mr. LaValle claimed he did not represent the “State” defendants (R3-50), therefore he could not - 27 -

file a responsive pleading on their behalf. District Court failed to address these arguments in the Order. See the following in support: Fed.R.Civ.P. Rule 4(j)(2): “Service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to it‟s chief executive officer …” See also: Dietrich-Barnes v. Alexander and The City of Atlanta, No.: 1:05-cv-1751-TCB, U.S.D.C. N.D. Ga. May 3, 2006 Order at pg 2: “The Court might have acquired jurisdiction over the City if Alexander had properly effected …, Alexander failed to cause a summons to issue …The failure … deprives the Court of jurisdiction. Fed. R. Civ. P. 4(c)(1).” “Apparently Alexander suggested that “the Court should not “rigidly” adhere to the Federal Rules if Civil Procedure…” The Court concluded the following: “… there is nothing rigid about requiring a party making a claim (whether a plaintiff, crossclaimant, or any other party) to comply with Fed. R. Civ. P. 4(c)(1)‟s simple requirement that the party against whom the claim is made be served with a copy of the pleading and summons.” The State's “Pre-Answer Motion To Dismiss” filed February as well as all other documents failed to comply with Local Rule 5.1.K. not one filing had WSD included; accordingly, The State filed nothing, thereby were in Default unless the Rule applied only to Stegeman. Local Rule 5.1.K. Civil Case Numbers. “A Civil case filed … shall be assigned a case number…, designate the division, the year … numerical sequence …, and include a three-initial suffix which will identify the district judge - 28 -

… All documents presented … all …correspondence shall have … the assigned civil case number which includes a three-initial suffix. Any document presented for filing which does not reflect the complete civil case number as described herein will not be accepted for filing.” IV.

MOTIONS TO DISMISS One would surmise that District Court not granting any Motions until after

Discovery period was over, that more than just the pleadings were used to determine the Motions To Dismiss, thereby should have been converted to Motion For Summary Judgment. In support Stegeman shows the following: Lockwood v. Beasley, 211 Fed. Appx. 873 (11th Cir. 12/20/2006) VERSUSLAW; No.: 06-12698 Per Curiam, [Do Not Publish]. Before Black, Marcus, and Fay, Circuit Judges. At “[24]: “As a general rule, “[w]henever a judge considers matters outside the pleadings …, is thereby converted into a Rule 56 Summary Judgment motion.” Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002); Fed. R. Civ. P. 12(b); Day v. Taylkor, 400 F.3d 1272, 1275-76 (11th Cir. 2005). “When that conversion occurs, the district court must comply with the requirements of Rule 56. … is required to notify … , and give .. 10 days in which to supplement the record.” Trustmark, 299 F.3d at 1267 (citations omitted).” “We have consistently enforced the strict notice requirements …, creating a bright line rule: If a district court fails to comply with the tenday notice requirement, the case will be reversed and remanded so that the district court may provide the non-moving party with adequate notice.” Jones v. Auto Ins. Co. of Hartford, Conn., 917 F.2d 1528, 1532 (11th Cir. 1990) (emphasis in original).”” Further, Porter‟s Objection to Stegeman‟s Motion To Shorten Discovery Period (R5-80) clearly shows that Porter was planning on Summary Judgment: “…to support his motion for summary judgment.” (R5-82-8). - 29 -

CONCLUSION Stegeman has shown this Honorable Court that District Court should not have dismissed the instant case against all of the defendants for Eleventh Amendment Immunity and or Statute of Limitations. The statute of limitations had yet begun to run, a Court of competent jurisdiction has made no "judicial ascertainment", “no order has been entered, and the record does not indicate any filing with the court.” Stegeman, unable to obtain legal counsel for lack of assets, attempted to remedy through every possible Administrative means.(R1-1-#6,-#7) Statute of limitations toll for multiple disabilities that prevent filing suit at an earlier date; as a victim of crime the statute of limitations had not run, that statute of limitations is six years; there is also continuing tort situations as well. Stegeman prays this Honorable Court will take sincere consideration when contemplating all that has been shown and take the proper steps to correct improper Rulings of the Trial Court by overturning the trial Court‟s decision, or in the least will Remand the action with appropriate instructions to have this case tried on it‟s merits. Respectfully submitted this 31st day of March, 2008

By: _____________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737 - 30 -