Petition En Banc Rehearing

PETITION FOR EN BANC REHEARING/REHEARING COMES NOW James B. Stegeman, Appellant in the above entitled case and timely files His PETITION FOR REHEARING EN BANC/REHEARING this Court’s August 26, 2008 Unpublished Affirmation1 pursuant to Fed. R. App. P. 35, and Fed. R. App. P. 40 should Rehearing EN BANC be denied. Fed. R. App. P. 35 (b)(1)(A): The panel decision conflicts with decision(s) of the United States Supreme Court or of this Court and consideration by the full court is therefore necessary to secure and maintain uniformity of this court's decisions. The following shows, with particularity and specificity, that both this Court and District Court failed to follow precedent concerning:

Pro Se pleadings

(complaint liberally read; held to less stringent standards); Motions To Dismiss; Immunity; Civil Rights claim; and disabled persons. CONFLICTING CASES See Mitchell v. Inman, 682 F. 2d 886 (11th Cir. 1982), citing Supreme Court case Haines, Vacated, and Remanded with Instructions; it was held that pro se pleadings are liberally read, should it appear that the complaint states more causes of action, the pleading shall be treated as amended2:

1

A copy of the opinion sought to be reconsidered is attached is included as an addendum pursuant to 11 th Cir. R. 40-1. 2 Duffey’s July Order of Dismissal, pg. 19 n.18 falsely alleged: “Plaintiff however did not move to amend.”; then pg. 32 ¶3. “Plaintiff’s Motion For Leave to Amend the Complaint” showing that n.18 was an “enhancement”. -1-

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“While the plaintiff’s pro se civil rights complaint specifically cites 42 U.S.C.A. §§1983, 1985 and 1986, read liberally, it invokes Title VII of the Civil Rights Act. 42 U.S.C.A. §2000e et seq. as well. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972). Oral argument proceeded on that basis.” The trial Court discussed the merits and facts of the case, referenced matters outside the pleadings in the dismissal,3 (Or. pg. 5; ), which usually converts the action into Summary Judgment. Going against Supreme Court and this Court’s own precedent, Appellant was neither set to a lower standard than defendant’s legal counsel, nor his complaint liberally read and construed.. Moore v. Florida, 703 F.2d 516 (11th Cir. 1983) Reversed and Remanded which held “[26] ‘a court should be particularly careful to ensure proper notice to a pro se litigant.’ Herron v. Beck, 693 F.2d at 127. See also Barker v. Norman, 651 F.2d 1107, 1129 (5th Cir. 1981) (holding district court abused its discretion…failing to afford to a pro se civil rights litigant…” “[37] The pleadings of pro se litigants…subject to less stringent rules. ‘The prisoner’s pro se complaint, however inartfully drafted, must be held to less rigorous standards than…by lawyers.’ Woodall v. Foti, 651 F.2d 268, 271 (5th Cir. 1981); see Richardson v. Fleming, 651 F.2d 366, 368 (5th Cir. 1981).” Congress recognizes disabled protected class status; both the District Court and this Court have denied Appellant’s protected status.

Congress mandated the

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Judge Duffey’s Ruling dismissing the case, careful not to reference evidence submitted in support of Appellant’s claim, combines only parts of the evidence to make up Judge Duffey’s own “enhanced” version of the complaint. There is no other explanation of how Judge Duffey could have come up with something that was never said by Plaintiff, any of the defendants, or shown in any of the evidence. Further, in an unrelated matter in District Court, Judge Duffey recently claimed that this Appeal is from a Summary Judgment, reproduced in Addendum as “B” -2-

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Federal govt. is disabled persons’ advocate and gave the Federal govt. the power to enforce the Fourteenth Amendment for disabled persons, a valid congressional override when it comes to 11th Amendment Immunity. To Rule otherwise is going against Supreme Court and this own Court’s precedent: SUPREME COURT OF THE UNITED STATES: UNITED STATES v. GEORGIA et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, Argued November 9, 2005–Decided January 10, 2006 No. 04—1203. Scalia, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined.: United States v. Georgia, et., al, 120 Fed. Appx. 785, reversed and remanded. “No one doubts that §5 grants Congress the power to enforce the Fourteenth Amendment’s provisions by creating private remedies against the States for actual violations of those provisions. This includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the States. Thus, the Eleventh Circuit erred in dismissing those of Goodman’s claims based on conduct that violated the Fourteenth Amendment. Pp.5-7.” This Court states on page 3, *fn 3: “…Stegeman’s argument that Congress abrogated sovereign immunity…(“ADA”)…Stegeman did not assert claims under the ADA...” Appellant has found nowhere that a disabled, protected class cannot sue under 42 §1983; to the contrary ADA states that §1983 is the proper avenue for redress of Civil Rights violations. Further, this Court’s Ruling goes against U.S. Supreme Court and other Federal Circuit courts precedent. “The Judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress…’” Gravel v. United States, @408 U.S. 606, 408 -3-

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U.S. 627 (1972). “A state Judge can be found criminally liable under §242 although that judge may be immune from damages under §1983.” See Imbler v. Pachtman, 424 U.S. 409, 429 (1976); O’Shea v. Littleton, 414 U.S. 488, 503 (1974).

“Judges who would willfully discriminate…would willfully deprive a citizen of his constitutional rights, as this complaint alleges, must take account of 18 U.S.C. 242.” See Greenwood v. Peacock supra at 384 U.S. 830; United States v. Price 383 U.S. 787, 383 U.S. 793-794 (1966); United States v. Guest 383 U.S. 745, 383 U.S. 753-754 (1966); Screws v. United States, 325 U.S. 91, 325 U.S. 101-106 (1945); United States v. Classic, 313 U.S. 299 (1941). Cf. Monroe v. Pape, 365 U.S. 167, 365 U.S. 187 (1961). The

grant of Immunity to Defendants results in denial of Appellant’s

protected status (disabled);4 goes against Supreme Court and this own Court’s precedent on 11th Amendment Immunity, County as “arm of the state”, and Civil Rights claims against the County: Abusaid, v. Hillsborough County, et., al., 405 F.3d 1298 (11th Cir. 2005). [84]: “the County enjoys neither Eleventh Amendment nor state law sovereign immunity”; “by now well established that ‘[t]he bar of the Eleventh Amendment to suit in federal courts extends to State and state officials in appropriate circumstances, but does not extend to counties and similar municipal corporations.’” Mt. Healthy City Sch. Dist. Bd. Of Educ. V. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568, 50L. Ed. 2d 471 (1977) Citation omitted). “the Court has consistently refused to construe the [Eleventh Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a 4

Appellant has shown the guidelines to receive Supplemental Security Income (A person must have at least two 100% Federally recognized disabilities, one of which is a 100% mental disability) are much more stringent than to receive Social Security Disability. . -4-

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‘slice of state power.’” Hess , 513 U.S. at 43 (citiation 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.”). The Abusaid Court continued to explain that municipal corporations, and similar governmental entities are “persons” for purposes of §1983, see below: “Since the Court has held that since municipal corporations…are ‘persons’, see Monnell v. New York City Dept. of Social Services, 436 U.S. 658, 663, 98 S.Ct. 2108, 2021-22, 56 L. Ed. 611 (1978); cf. will [v. Michigan Dep’t. of State Police, 491 U.S. 58, 69 ,.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. ed 471 (1977). ‘By including municipalities within the class ‘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). Howlett, 496 U.S. at 376; accord Hufford, 912 F.2d at 1341 n.1.” District Court ignored pleas for legal counsel and assistance, further violating the Fourteenth Amendment and due process.

Appellant’s complaint

clearly claimed he had been denied due process of law, meaningful access to the Courts; Federally funded “protective services” to protect him, his resources, and provide “essential services” had been denied to him although he was eligible and qualified. How can Appellant’s complaints be outside of the statute of limitations, when the agencies in place to protect disabled refused to do so? Facts clearly show -5-

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that all programs, agencies, etc. denied Appellant all legal assistance, aid, protection. DeKalb County kept vital information from Appellant5, making him a victim of exploitation, vexatious litigation, seizure of property, fraud; denied him property interests, numerous other violations committed by persons acting under color of law, without due process of law; shows willful, wanton, malicious misconduct, that caused statute of limitations to run in order to prevent Appellant the Right to seek redress. Unknown to Appellant, but known to DeKalb County and the State for the past six years, Appellant was never investigated by the DA’s office, the information was purposely withheld from Appellant, preventing needed evidence to successfully navigate the Judicial system; is an excellent reason why the statute of limitations should be tolled. Petition for Temporary Administration of Caffrey Estate: “nephew being investigated by the DA for elder abuse and financial fraud” Fraud upon the Court to become Temp. Administrator and Personal Rep. in Superior Court action. Appellant, Petitioned District Court for Permission & Assistance to have criminal matters presented to the Federal Grand Jury. The Petition was denied. 5

Until the filing of DeKalb County defendants’ Appellee Brief, there had been no admission from DeKalb County that Stegeman had never been charged, arrested, tried or convicted of any crimes, especially not the crimes alleged against him for fraud and elder abuse. The County maintained the alleged guilt until the filing of Appellee’s Brief, this prevented Appellant from being able to bring his claims to Court and is FRAUD UPON THE COURT. -6-

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Appellant has never been charged, arrested or convicted of any crimes, in County Appellee’s Brief, for the first time, has agreed the statement is true. Under what authority could a Probate Clerk have to revoke a Special Durable Power of Attorney with an Interest?

Under what authority could a County Guardian,

controlled by Probate Court seize, change names and address of and use the Stegeman/McDonald accounts at Wachovia?

Under what authority could a

Probate Clerk impersonate Judge of Probate Court by making Rulings and signing as “Judge” without using the mandatory stamp showing Clerk acting as Judge? After Probate Court denied Appellant his Right to Appeal, he filed civil action file no: 05cv13909-09 to have the original Order set aside, the case sits in Superior Court. See “B” in the Addendum showing the complaint filed in Superior Court and the current Court Docket showing case “OPEN”. It is on-going, the Original Probate Court Ruling “coram non judice” appointing the Guardian of Property only, as well as the Temporary Administration were obtained through fraud and fraud upon the Court, the Rulings VOID, not worth paper written on. FRAUD UPON THE COURT; CONSPIRACY, EXTRINSIC FRAUD The Fourteenth Amendment/ Due Process of Law Appellant has shown, and this Court failed to address violations of Appellant’s Fourteenth Amendment, due process violations under color of law. U.S. v. Price, 383 U.S. 787 (1966) page 383 U.S. 799 states: “This is an allegation of state action, …without …due process of -7-

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law as required, …by the Fourteenth Amendment, used its sovereign power and office to release the victims from jail so that they were not charged and tried, as required by law, but instead could be intercepted and killed. If the Fourteenth Amendment forbids denial of counsel, it clearly denounces denial of any trial at all.” “The Fourteenth Amendment protects the individual against state action,… Williams I, 341 U.S. at 341 U.S. 92 (opinion of Douglas J.)… Page 383 U.S. 800 and is therefore within the scope of the Fourteenth Amendment.” Page 383 U.S. 806: “…no State shall deprive any person of life or liberty without due process of law … direct traditional concern of the Federal Government, …in which the federal interest has existed for at least a century, and in which federal participation has intensified as part of the renewed emphasis upon civil rights.” Appellant was accused, released and killed. Suffering acute Bi-Polar Disorder, Appellant has only his integrity and reputation. That was taken from him by acts of persons under color of law. Appellant has shown undisputedly that he is a Federally disabled adult receiving Supplemental Security Income. Officer Porter (this Court failed to address Porter altogether), continues to state Appellant is guilty, and should have known his POA. was being challenged. This Court goes further and states caused Plaintiff “to lose custody” of his aunt, quoting Porter’s Appellee Brief. Plaintiff never had or claimed to have “custody”. Porter said that, with the knowledge that he obstructed justice and obstructed procedures for Family Violence allegations; by doing so would deny Appellant legal counsel and the Right to clear his name. Porter knew there’d be no hearing, he’d never face the accused in Court.

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The Family Violence Act, mandates someone accused of violations of the Family Violence Act is charged and arrested; only the District Attorney has jurisdiction; until a thorough investigation is completed and the DA makes a decision, there are no other actions. Both the U.S. and Georgia Constitutions guarantee that you are innocent until proven guilty in a court of law with a jury of your peers, and have the Right to face, confront witnesses and accusers. Appellant “was not charged”, was “denied counsel,” was not “tried as required by law”. Arms of The State Clearly, this Court has gone against The United States Supreme Court and this Court’s own precedent, and/or has misinterpreted The Georgia Constitution and State law, and/or has decided that Georgia’s Constitution is wrong, and has changed state law to accommodate District Court’s Ruling. This Court’s Ruling has the potential to adversely affect future cases. The Ruling must not be allowed to stand. District Court and this Court has said that DeKalb County, DeKalb Probate Court, DeKalb State Court, DeKalb Solicitor’s Office are all an arm of the State. This Court, on page 3 cites Kaimowitz v. Florida Bar, 996 F.2d 1151, 1155 (11th Cir. 1993)

(…against state courts are barred by Eleventh Amendment…).

Perhaps in Florida state courts are “state” courts. In Georgia State Courts are County and Superior Courts are state. State statute defines State courts as County;

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State and Probate Courts are controlled by the County; County funds pay the salaries of state Court personnel including the judges; and the financial responsibility is on the County for State and Probate Courts; both are Courts of limited jurisdiction and The Judicial Council/ Administrative Office of the Courts states that both Courts are County Courts. The Ruling goes against this Court’s own past Rulings and will affect this Court’s caselaw integrity and development of the law.

They are erroneously

deemed to be an arm of the state under the four prong test set out in Abusaid v. Hillsborough County, et., al.

2005 U.S. App. LEXIS 6341, *;405 F.3d 1298;

18 Fla. L. Weekly Fed. C 436; and as discussed in Grech v. Clayton County, Georgia 335 F.3d 1326 (11th Cir. 2003).

According to

The Judicial

Council/Administrative Office of the Courts, and Your Guide to the Georgia Courts, State Court is a County entity and Superior Court is a state Court. Reasoning that the claims against State Court are barred by Eleventh Amendment Immunity are clearly in err.

DeKalb County, Probate Court, the Solicitor’s Office

and State Court are not arms of the state, Judge Duffey, not the defendants made that argument, and the State’s attorney did not represent them. Conspiracy to violate and violating Appellant’s Civil Rights under color of law or authority are criminal acts. The Courts have refused to recognize the disabled/protected status and granted dismissal to all defendants though their acts

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are criminal in nature with a five year statute of limitations, §§241, 242, and Judges are not protected by immunity under these code sections 18, U.S.C., § 241 Conspiracy Against Rights … unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, … free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or, the laws of the United States,…unlawful for two or more persons to go in disguise . . .or on the premises of another with the intent to prevent or hinder … exercise or enjoyment of any rights so secured . Punishment … fine or … up to ten years, or both; …if death results, or …kidnapping or an attempt to kidnap, …, shall be fined …or imprisoned … years…life or… to death.” 18, U.S .C. § 242 Deprivation of Rights Under Color of Law … makes it a crime for any person acting under color of law, statute ordinance regulation or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S . “…not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority must be done while … purporting or pretending to act in the performance of his/her official duties.” “… in addition to law enforcement, … Judges, … U.S. law enforcement …other officials like judges, … Preventing abuse …, however, is equally necessary to the health of our nation's democracy. That's why it's a federal crime for anyone acting under "color of law" willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S law.. DHR and the Solicitor’s Office were contacted, knew of the crimes committed against Appellant, of his situation before the statute of limitations ran. A total system failure to protect, advise, prevent and represent the Appellant for the

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sole purpose of statute of limitations running. Dept. Human Resources’(DHR) under 45 CFR 74, 45 CFR 92, 45 CFR 1321, O.C.G.A. §49-6-2G; The Health and Welfare Act, Title 42, Chapter 35, Subchapter I –XI, and Social Security Act receives Federal Funding, has an obligation to protect and provide to disabled, services necessary to protect their Rights, property and resources; Adult Protective Services O.C.G.A. §§30-5-10 to 30-5-10.6 Appellant qualifies for, yet was denied these programs. Discrimination. DeKalb Solicitor’s Office operates Adult Protective Services, has obligation to protect and provide to disabled, services necessary to protect their Rights, property and resources; Appellant qualifies, was denied programs. Discrimination. See U.S.C. 42, 126, §12101(b): (b) Purpose (1) to provide a clear and comprehensive national mandate … (2) to provide clear, strong, consistent, enforceable … (3) to ensure that the Federal Government plays a central role in enforcing … on behalf of individuals with disabilities; (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities. See also: §12102: (2) (A) a physical or mental impairment that substantially limits one or more of the major life activities…; (B) a record of such an impairment; or 6

Protection from exploitation, the illegal or improper use of a disabled adult or elder person or that person’s resources. To ensure they receive essential services: legal services necessary to safeguard the person’s rights and resources; social, medical, psychiatric; and to maintain the physical and mental well being - 12 -

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(C) being regarded as having such an impairment. § 12101: “…with disabilities, …inferior disadvantaged socially, vocationally, educationally…no legal recourse to redress”.

status…severely economically,

Denial of Right to Appeal Neither this Court, nor the District Court addressed the undisputed fact and evidence that Appellant has been denied his Right to Appeal Probate and Superior Court Rulings. This is a matter of extreme importance. Further, just as in Probate and Superior Courts, the District Court failed and refused to make docket corrections, refused Appellant the filing of documents. District Court filed the documents which showed on the Docket Report only to disappear and never be seen again. Even after the request was made to put the documents back in the record and on the docket report, the documents did not return, here was never an explanation given. How is one to Appeal when the docket reflects that not all of a party’s documents are filed. How can one be sure that the docket reflects truly what it shows? How can anyone trust the Courts? Georgia lacks attorneys who work on contingency. The only way to seek redress was to learn as much as possible about law, file as pro se. Attorneys go to school several years, then do an apprenticeship.

Appellant did not have that

opportunity, was forced to represent himself against nine (9) attorneys for the

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defendants. Then, Appellant’s case is dismissed for statute of limitations and immunity, both reasons are clearly erroneous. Manifest Injustices In the trial Court, Judge Duffey “enhanced” facts, falsifying statements and falsifying what the undisputed evidence 7 showed. Per Curiam page 2 “Stegeman’s claims arise out of proceedings in the DeKalb County Probate Court that revoked Stegeman’s power of attorney…found that Stegeman had engaged in elder abuse and financial fraud; appointed a guardian ad litem…”

This statement is incorrect.

A Probate Clerk, without

jurisdiction or authority, found Stegeman guilty of criminal acts, elder abuse and financial fraud, and appointed a guardian of property Only. Further throughout Judge Duffey’s enhanced version of Appellant’s complaint, Judge Duffey makes ludicrous, inflated, false statements concerning Appellant and Ms. McDonald (non-party)8 that neither the Plaintiff, nor

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making blown out of proportion statements that Plaintiff was “being investigated for criminal theft by taking and elder abuse charges” when the complaint stated “being investigated for financial fraud and elder abuse. 8 Judge Duffey’s Order, pg 8-9: “Lillig stated Caffrey and Plaintiff were estranged, and that the District Attorney’s Office was investigating Plaintiff for felony theft by taking and elder abuse” (the complaint said Lillig, in Petition to Probate the new Will, said that there were no other Wills, Lillig admitted in deposition that he knew of the Original Will on filed at DeKalb County; Lillig also stated that Plaintiff was being investigated by the DA’s office for fraud and elder abuse, and the Plaintiff and his brother were estranged from Caffrey) the brother lives in Wisconsin and was not estranged and No mention of McDonald. - 14 -

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Defendants had stated or referenced.

Obviously, the trial Court expresses

bias/prejudice toward either disabled persons (denied Appellant member of protected class), or Pro Se litigants (holding them to higher standard, and failed to liberally construe pleadings). CONCLUSION Appellant has shown why this Court should grant his Petition, for the sake of the Court’s integrity as well as to rectify manifest injustice and to prevent future Courts from making erroneous Rulings based on this case. Appellant prays his Petition be granted. Respectfully submitted this 15th day of September, 2008.

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

Duffey then states “Plaintiff claims Joyner’s attorney called two witnesses who falsely testified that Caffrey was abused by Plaintiff and McDonald.” (the complaint stated that one of Joyner’s two witnesses, the attorney who made the new Will, was told by Caffrey, Lillig and Mavis Turner that Plaintiff and his brother had starved Caffrey) the brother lives in Wisconsin and No mention of McDonald. Caffrey suffered from symbolic disorder, mid-mild cognitive and immobility syndrome; early signs of Parkinson’s or Alzheimer’s, she was mentally incompetent, but not dangerous to herself or others. - 15 -

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CERTIFICATE OF COMPLIANCE I Certify that this Petition is prepared for James B. Stegeman complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This Brief contains 3476 words.

Prepared By: ___________________________ Janet D. McDonald

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CERTIFICATE OF SERVICE I have this 15th day of September, 2008 served a true and correct copy of PETITION FOR EN BANC REHEARING/REHEARING upon the Appellees in this matter through their attorney(s) on file by causing to be deposited with USPS, first class Certified Mail, with proper postage affixed, as follows: Cristina Correia Assistant Attorney General 40 Capital Square, S.W. Atlanta, GA 30334-1300 Mr. Peter C. Brown Carothers & Brown 278 West Main St. Buford, GA 30518 Brenda R. Raspberry DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 ______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737

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