Petition For Writ Of Cert United States Supreme Court

IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI Petitioner respectfully prays that a writ of certiorari issue to review the judgment below. OPINIONS BELOW The opinion of the United States Court of Appeals appears at Appendix A to the petition and is unpublished. JURISDICTION The date on which the United States Court of Appeals decided my case was August 26, 2008. A timely petition for rehearing was denied the United States Court of Appeals on October 20, 2007 and a copy of the order denying rehearing appears at Appendix B. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Due to length, the controlling Constitutional and Statutory Provisions are shown in Appendix H, pages 1 through 21.

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STATEMENT This Petition shows that the United States District Court and United States Court of Appeals entered decisions in conflict with this Court and other United States District Courts and Courts of Appeals on the same important matter. The action in the District Court addressed very important Constitutional issues beyond the facts and parties involved. 1. Statement of the Case Petitioner1 filed a prima facie Pro se2 complaint in U.S. District Court December 5, 2006 citing Civil and Constitutional Rights violations due to the denial of due process of law, and violations concerning proceedings in Probate and Superior Courts. June 2002, DeKalb County Probate Court Clerk Jeryl Rosh,3 impersonating a Judge, with no evidence presented, acting on Officer R. B. Porter’s falsified Petitioner is a disabled adult male receiving Supplemental Security Income, denied Legal-Aid, Pro Bono assistance, unable to locate an attorney willing to work full contingency and without assets to obtain legal counsel, was forced to proceed as Pro Se. * Legal-Aid in Georgia is a Federally Funded program, Petitioner qualifies for the program, like most of Georgia’s federally funded programs for which Petitioner qualifies and is eligible, he denied. *Adult Protective Services (APS) Georgia Dep’t of Health and Human Services under O.C.G.A. §§30-5-1 – 30-510 which is run through DeKalb County Solicitor’s Office’ of “Disabled and Adult Protective Services” and also receives Federal Funding and denied Petitioner assistance. 1

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“the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1971). Thus, when a court entertains to dismiss a pro se action before it, if there is any possible theory that would entitle the Plaintiff to relief, even one the Plaintiff hasn’t thought of, the court must not dismiss the case. 3

Jeryl Rosh was elected November 2004 to become Judge of Probate Court in January 2005. 2

Police Report; and without ever being indicted, charged, arrested, never allowed to face his accuser in Court, and without being allowed to present evidence on his behalf, Clerk Rosh declared Petitioner guilty of financial fraud and elder abuse. Probate Court lacked personal and subject matter jurisdiction; Probate Courts in Georgia

lack jurisdiction over criminal matters, and Probate Clerks are not

permitted to act when the act is judicial in nature, and not allowed to preside over contested matters. O.C.G.A. §15-9-36. “(a) The judges of the probate courts are, …clerks of their own courts; but they may appoint one or more clerks,… shall also have the authority to appoint one of their clerks as chief clerk… (b) The appointed clerks, … chief clerk … may do all acts the judges of the probate courts could do which are not judicial in their nature and … in which they are authorized to act for the judge … (c)(1) In addition to other powers … the chief clerk of the probate judge or…may exercise all the jurisdiction of the judge of the probate court concerning uncontested matters in the probate court …” Clerk Rosh revoked an irrevocable Power of Attorney with an interest, appointed County guardian of property John Joyner, for Petitioner’s elderly incompetent aunt Jean Caffrey.

Joyner seized Petitioner’s assets4 and other

property, which included real property that Petitioner possessed property interest. Seven months after Joyner filed a civil action against Petitioner, Ms. Caffrey The assets had been in the name of Janet McDonald and James Stegeman Joint Tenants With Rights of Survivorship, the aunt’s name was Geneva S. Caffrey. 4

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passed away.5 With two Wills and a caveat filed, a Personal Rep. could not be appointed for the Superior Court action; Superior Court Judge Hunter, allowed the case to continue without a proper party. March 24, 2004 eleven months later, a few days before Jury trial, agreement to settle was reached. Both attorneys signed the agreement. Petitioner’s only obligation was to withdraw the caveat, which he did. Opposing party refused to perform their obligations under the agreement. Petitioner’s attorney deserted him, he found that the agreement had been modified several times by the opposing attorney Robert Turner. Petitioner wrote to Judge Hunter, asked the proper agreement be filed with the Court so he could regain access to accounts which he had been refused all access and information about for two and a half years. Judge Hunter did nothing. Judge Hunter set the case for Jury trial to begin October 18, 2004. September 2004, Petitioner had to retain new counsel,6 Stephen Apolinsky, to file Motion to Enforce the agreement and have the case removed from the docket. Judge Hunter refused to accept the original agreement.7 Petitioner and Ms. The elderly aunt was removed from her home, hidden from all family who had looked for her, told no one cared about her, a new Will was made immediately after the Probate hearing; she was cremated and buried under the wrong name and in the wrong place before family found out she had passed away. 5

Ms. McDonald, using money inherited from her Mother, had paid all of Ms. Williams fees on the promise that Petitioner would prevail; Ms. McDonald paid Mr. Apolinsky for representation as well 7 A new less favorable agreement had to be drawn up. 6

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McDonald regained in name only, the single account left out of several accounts, but were refused access by Wachovia; the account had nothing in it. Mr. Apolinsky, paid by Ms. McDonald to do a formal investigation into the accounts at Wachovia, was to research the actions of Probate and Superior Courts and Caffrey’s Guardian. When the investigation was completed, Mr. Apolinsky said he couldn’t work on full contingency, and to try “an attorney in Macon, maybe” that he has “to work in DeKalb County”. April 2005, Administrator of Ms. Caffrey’s Estate filed for discharge falsely swearing all debts of the estate had been satisfied.8 Petitioner filed Objection to the Discharge, acting Pro Se9 as a creditor.10 Petitioner, as the only known family member of Caffrey, has been taken to court and repeatedly contacted by Caffrey’s creditors due to Administrator’s failure to notify them of the death and take care of the matter. Several credit card companies have written off as much as twenty-five thousand dollars due to lack of notice of the death, and lack of payment. Judge of Probate Court by that time was Jeryl Rosh who as Probate Clerk, had illegally presided over the hearing and deemed Petitioner guilty of felonious acts. 8

Although Petitioner attempted to obtain legal counsel, Legal-Aid and Pro Bono attorneys denied him and unable to locate an attorney who worked full contingency. 9

Petitioner had co-signed for a loan for Caffrey with her house as back-up to Petitioner; Caffrey’s guardian, with permission of the Probate Clerk, sold the house, but never paid any of the loan. Ms. McDonald had been paying the loan since 2002 to protect Petitioner’s credit. Demand for payment had been made several times during the three years; neither the guardian, nor administrator paid anything on the loan although they had actual knowledge and sufficient assets to do so. 10

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Administrator waited six months, filed for Summary Judgment. Petitioner attempted to respond to Summary Judgment, Probate law Clerk Mr. Fowler told Petitioner he could file nothing. After a lengthy debate about “Rights”, Mr. Fowler agreed to allow filing of Response, but the documents were held unfiled until after the Final Ruling November 2005.11 Petitioner filed a timely Notice of Appeal, Ms. McDonald paid the Appeal fee. Probate Court held the Notice and check until time to file Notice of Appeal had expired, mailed it back saying that Petitioner would not be allowed to appeal. December 2005, Petitioner, acting Pro Se, filed in Superior Court Probate Appeal and Motion for Void Judgment, assigned to Judge Scott. March 2005 Petitioner filed Motion for Judgment and Notice of Intent to Appeal. For three years, the appeal and void judgment have set with no activity. October 2008 Ms. McDonald alerted Petitioner of a peremptory calendar hearing set for November 26, 2008.12 Although the Court failed to Notice Petitioner of the hearing, he attended. There was no appearance by opposition. Every case in which only one side of the case appeared, that party was granted the relief they sought. During the After conclusion of the hearing, Judge Rosh and the administrator’s attorney Mr. Turner participated in ex-parte communication discussing whether or not demand for payment of the loan and debts had been made. 11

There had already been a peremptory hearing in June 2008, for which Petitioner had not been Noticed. Ms. McDonald’s internet connection had been blocked from access until she changed internet providers. She was then able to connect to the County’s Dockets, found that there had already been a hearing as shown in Appendix F, Addendum 1, page 1. 12

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hearing, when Petitioner was called and responded, he was told they would get back to him. Petitioner was called three times, the last time, after all parties had the opportunity to address and be addressed,13 he was again told they would get back to him then the Judge, clerks and court reporter left the courtroom. Now Petitioner has been alerted by Ms. McDonald that the Appeal and void judgment has been set for a Jury trial January 26, 2009. Again, no Notice has been sent to Petitioner. Petitioner is unaware of Appeals or Void Judgments being set for Jury Trial. Clearly, the original conspiracy has continued. Hicks Law Firm employer of attorney Ms. Williams filed an action in State Court against Petitioner wanting payment although Petitioner had been deserted and new counsel had to be obtained to end the case. Petitioner, again denied by Legal Aid, timely filed a Pro Se answer and counterclaim. That case has been in State Court for three years with little to no activity. Petitioner filed several motions which went un-addressed. The one hearing that was set, Plaintiff’s counsel sent a letter of conflict, Petitioner called the Court clerk, was told the hearing was to be postponed. Apparently the hearing was held anyway, Petitioner’s Motions were all dismissed.

Petitioner filed Motion for reconsideration explaining what had

happened. That was two years ago. To date, no activity in the case.14 June 2008, Petitioner was denied the Right to be heard, a regular treatment be the Courts at Stone Mountain Judicial Circuit. The failure to Notice Petitioner of hearings is also a regular treatment by Superior and State Courts. 14 State Court was named a defendant, however neither the County, nor the State’s attorneys were representing State Court or the Solicitor’s Office in the action and they had failed to file 13

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Petitioner filed Motion for Judgment as a Matter of Law, there has been no Ruling on the unopposed Motion. Petitioner and Ms. McDonald, denied Legal-Aid and Pro Bono attorneys, and unable to obtain attorney on full contingency, filed a Pro Se action against Wachovia in Superior Court January 2006. Judge Hunter, the same judge, was assigned to the case. The thirtieth day, Wachovia defectively removed the case to U.S. District Court on the grounds of diversity, filing removal to the wrong Judge and without answering the complaint. Failed to file responsive pleadings for several more days, the filed Motion to Dismiss for failure to state a claim for which relief could be granted. Since they were in Default, they should not have been allowed to file a response that would have defeated recovery. When Petitioner filed Motion for Default, Judge Hunter closed the case. Petitioner and Ms. McDonald filed Notice of Appeal to Supreme Court, paid the twenty-five dollars required. Two months passed. Superior Court sent a bill for an Appeal to the Georgia Court of Appeals for $178.00, the bill was paid. The Appeal never left Superior Court and the $178.00 never mentioned again.

U.S. District

Court Judge Duffey remanded the case to a different Superior Court Judge, without ruling on Default. Judge Hunter took the case without “case transfer”. Wachovia responsive pleadings. District Court’s Docket Report shows no representation for State Court or Solicitor’s Office, The Docket for Court of Appeals shows State Court represented by Attorney General’s Office 8

failed to move to open default, but paid the fee to open default, there was no hearing. Superior Court’s Appeals clerk telephoned, informed Petitioner there were no documents or transcripts to send on Appeal, Withdrawal of Appeal needed to be filed to Superior Court.15 Petitioner filed the withdrawal, Wachovia filed nothing. The case was in Superior Court fifteen months, with never a hearing, Petitioner was not allowed to file any evidence, then case dismissed under O.C.G.A. 9-11-12(b)(6), “failure to state a claim”. Default estops a party from filing a defense that would defeat recovery. 2. Statement of the Proceedings The case at bar was in U.S. District Court for seven months. Although Respondents claimed statute of limitations and/or immunity, there were no hearings, the issues of statute of limitations, immunity, and all Motions 16 unaddressed until the final Ruling. All Petitioner’s Motions denied or found Moot. Petitioner’s Pro Se complaint was dismissed as barred by statute of limitations and/or immunity. Petitioner had shown a single, on-going and current conspiracy, carried on through multiple parties, acting under color of law to deny Withdrawal of Appeal must be agreed upon by all parties and filed not to Superior Court, but to the Appellate Court: Court of Appeals of Georgia, Rule 41. Preparation and Filing. (g) Motion to Withdraw Appeal. Whenever appellant decides not to pursue an appeal, such party shall promptly file a motion for permission to withdraw the appeal. 15

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There were 102 docket entries when the Court Ruled to dismiss the case. 9

Petitioner his Rights of due process and equal protection. As stated in Slavin v. Curry, 574 F.2d 1256 (5th Cir. 06/13/1978),: “When the complaint is read with the required liberality, however, it asserts a single, continuing conspiracy… that began with the intention of denying … equal protection of the laws and continued by obstructing justice and denying due process in an attempt to conceal the complicity in the first action... they state separate causes of action against individual defendants, they also charge participation in a single conspiracy.” Had the Courts liberally read Petitioner’s complaint as required, they would have found a single, continuing conspiracy, which Petitioner outright stated, beginning with “obstructing justice”, “intentionally denying equal protection”, and “continued by and denying due process in an attempt to conceal the complicity in the first action”. Petitioner stated “separate causes of action against individual defendants”, but charged “participation in a single conspiracy” which according to Slavin was properly plead. Neither the District Court nor the Court of Appeals addressed “conspiracy”, “Pro Se pleadings” “denial of appeals”, or “disability”. Further, as Petitioner has pointed out to the Courts, he was forced into Pro Se litigation, not his preference to do so. Denial of Legal-Aid, denial of protection through Adult Protective Services,17 a federally funded state program for which

See Appendix H, pages 13-19 for the statues, rules and/or regulations concerning Disabled and Adult Protection 17

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Petitioner is qualifies, is eligible as a disabled person. See Tennessee v. Lane, 124 S.Ct. 1978, 541 U.S. 509, 158 L.Ed.2d 820, 15 A.D. Cases 865 (U.S. 05/17/2004): “Title II is an appropriate response to this history and pattern of unequal treatment. Unquestionably, it is valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services. Congress' chosen remedy for the pattern of exclusion and discrimination at issue, Title II's requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The long history of unequal treatment of disabled persons in the administration of judicial services has persisted despite several state and federal legislative efforts to remedy the problem. Faced with considerable evidence of the shortcomings of these previous efforts, Congress was justified in concluding that the difficult and intractable problem of disability discrimination warranted added prophylactic measures. Hibbs, 538 U. S., at 737.” Denial of Legal-Aid, is in fact barring meaningful access to the Courts, violation of due process and equal protection and denial of “property”. The Court of Appeals stated: “Stegeman’s argument that Congress abrogated sovereign immunity from claims under the American’s with Disabilities Act (“ADA”) is unavailing because Stegeman did not asset claims under the ADA. Congress has not abrogated sovereign immunity from claims, such as Stegeman’s brought under §§1983 and 1985. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67, 109 S. Ct. 2304, 2310 (1989); Fincher v. Fla. Dep’t. of Labor & Employment Sec., 798 F.2d 1371, 1372 (11th Cir. 1986).” The Court of Appeals went against it’s own Rulings, 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 “read liberally, it invokes Title VII of the Civil Rights Act 42 U.S.C.A. §2000e et seq. as well.” 11

“pro se pleadings are liberally read, should it appear that the complaint states more causes of action, the pleading shall be treated as amended: “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.” See also: “A court faced with a motion to dismiss a pro se complaint must read the complaint’s allegations expansively, Haines v. Kerner 404 U.S. 519, 520-21, S. Ct. 594, 596, 60 L.Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972).” Petitioner’s complaint clearly stated that there had been a conspiracy by persons acting under color of law, claims never addressed in the Court of Appeals or District Court. “To maintain a conspiracy action under §1983, it is necessary that there have been an actual denial of due process or of equal protection by someone acting under color of state law. Hanna v. Home Insurance Company, 281 F.2d 298, 303 (5th Cir. 1960), cert. denied, 365 U.S. 838, 81 S. Ct. 751, 5 L. Ed. 2d 747 (1961).” Included in this, Petitioner’s Petition for Cert., are Judgments inconsistent with this Court and District Appellate Courts; going against past precedent and the principles of stare decisis; denying a litigant his Right to Appeal final rulings; refusing to liberally construe pleadings of a pro se litigant. Petitioner has found nowhere that a Court’s failure to address that a litigant

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is “pro se” or “disabled” excuses them from having to consider pleadings and law accordingly.

Being pro se entitles a litigant to have his pleadings liberally

construed, and if there is any possible theory that would entitle the Plaintiff to relief, even one the Plaintiff hasn’t thought of, the court must not dismiss the case. Being disabled, a litigant is a member of a protected class and that the violations of due process were under color of law, thereby §§1983, 1985 are treated differently than when filed by an ordinary citizen of a non-protected class. This Court has held the following of section 1985(3), "requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971) (emphasis in original). “The language of section 1985(2) is similar to that of section 1985(3). The relevant portion of section 1985(2) establishes a cause of action against two or more persons who: conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny any citizen the equal protection of the laws, . . . .” Slavin v. Curry, 574 F.2d 1256 (5th Cir. 06/13/1978). Both Probate and Superior Courts manipulated the records and docket reports, then refused to send to the Appellate Courts timely filed and paid for appeals of final Rulings. The County and State never denied or disputed this fact, and for which Petitioner had supplied evidence to the District Court. Neither the Court of Appeals, nor the District Court made comment on the denial of Appeals.

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In Rheuark v. Shaw, 547 F.2d 1257, 1259 (5th Cir. 1977), the 5th Cir. held: “an action could be maintained under section 1983 against a state court clerk and stenographer for failing to forward a transcript to the state appellate court.” See also Qualls v. Shaw, 535 F.2d 318 (5th Cir. 1976); McLallen v. Henderson, 492 F.2d 1298, 1299 (8th Cir. 1974). “In particular, the court reporters acted under color of state law in preparing the trial transcript. Slavin's complaint is therefore legally sufficient to state a cause of action for conspiracy under section 1983.” Slavin v. Curry, 574 F.2d 1256 (5th Cir. 06/13/1978) December 5, 2006 Petitioner, a disabled adult receiving Supplemental Security Income, filed a prima facie Pro Se Complaint in US District Court for ongoing and continuous Civil and Constitutional Rights Violations under color of law or under color of authority, brought through a conspiracy to violate his Rights under color of law or color of authority. Petitioner attached “evidence”, 18 over one hundred (100) documents as Exhibits, which were never rebutted, and none of the Respondents attached a single document in support of their defense, all Respondents stated that there were no documents in support of their defense. Petitioner has been continually denied both substantial and procedural due process; and has had every attempt to Appeal Final Rulings either tampered with,

FRE, Article III, Rule 301. “In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption,…” Article IV, Rule 401. “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is consequence to the determination of the action more probable or less probable than it would be without the evidence.” 18

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obstructed, or after submitting the payment for the Appeal,19 the Right to Appeal has been outright denied.

The defendant Courts, Judges, and Clerks never

rebutted or denied this fact; and although this undisputed fact was brought up numerous times. This Court has held: “denial of the statutory right of appeal is a violation of the Equal Protection Clause of the Fourteenth Amendment.” Cochran v. Kansas, 316 U. S. 255. Petitioner’s complaint clearly showed that a Probate Court Clerk impersonating a Judge had declared Petitioner guilty of felonious acts, which led to his assets and property being seized. Not only did Probate Court lack personal and subject matter jurisdiction, the acts of the Clerk were illegal. This Court over 130 years ago, in Bradley v. Fisher, 80 U.S. 335, 352 (1872) offered a classic example and held: “if a probate court, invested only with authority over wills… estates…, should proceed to try parties for [criminal] offenses, jurisdiction over he subject of offenses being entirely wanting in the court,…his commission would offer no protection to him in the exercise of usurped authority.” Probate Court accepted the Notice of Appeal and the filing fee, held the Appeal until expiration of the time to file the Appeal then mailed the check back stating that I could not Appeal. Superior Court accepted the fee to file Notice of Appeal to Supreme Court, held the Notice for two months then sent a bill for Appeal to Georgia Court of Appeals. The bill was timely paid, but the Court continued to hold the Appeal, the Superior Court Appeals Clerk then telephoned to say that there were no documents or transcript to send, that I needed to withdraw the Notice of Appeal to Superior Court (which if there had actually been an Appeal to Georgia Court of Appeals, the withdrawal would have had to be filed in Georgia Court of Appeals, not Superior Court. I filed the Withdrawal, the opposing party never filed the required Withdrawal (both parties are required to Withdraw an Appeal). Superior Court never returned or made reference to the $178.00 fee paid for the Appeal 19

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Petitioner pointed out to the Court of Appeals and the District Court that the Petitioner has continually been discriminated against, subjected to acts depriving him of his constitutional rights by persons acting under color of law. Probate and Superior Court Judges, that Petitioner had been subjected to acts depriving him of his constitutional rights under color of law and that the Court must take into account of 18 U.S.C. §242. See: O’Shea v. Littleton 414 U.S. 488 (1974) page 414 U.S. 503: “Judges who would willfully discriminate…would willfully deprive the 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. 941, 325 U.S. 101-106 (1945); United States v. Classic, 313 U.S. 299 (1941).” “…we have never held…performance of the duties of judicial,… requires or contemplates the immunization…criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339 (1880). On the contrary, 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, at 408 U.S. 606, 408 U.S. 627 (1972).” Further, when appealing the District Court’s final ruling dismissing Petitioner’s case, the District Court refused to correct the documents and record on appeal after a properly filed Motion to do so was filed. The Appellate Court had been noticed on the defect of record and documents and failed to act. Petitioner believes this that the District Court at that point joined in the conspiracy and the Eleventh Circuit’s lack of action to have the records and docket corrected shows 16

they too had joined the conspiracy. Petitioner has consistently maintained that the conspirator’s actions were based on the fact that he is disabled and having to proceed Pro Se, the conspirators knew that Petitioner lacked the assets for legal counsel and they would be able to do as they pleased. Petitioner has been continually denied meaningful access to the courts to prosecute and defend his actions. Further, the disabled Petitioner has shown that he has been denied meaningful access to the Courts, that his assets and “property” were seized without due process of law, in violation of not only The United States Constitution, but The State of Georgia Constitution as well. And that a State is not immune from suit. See U.S.C. 42, 126, §12101 “…with disabilities, …inferior status…severely disadvantaged socially, vocationally, economically, educationally…no legal recourse to redress”. (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. Petitioner 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

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redress of Civil Rights violations. Further, the Court of Appeals’ Ruling goes against U.S. Supreme Court and other Federal Circuit courts 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.” The Court of Appeals affirmed District Court’s grant of Eleventh Amendment Immunity to Probate Clerks, Probate Courts, State Court of Georgia and the County Solicitor’s office as an “arm of the state” when the State of Georgia Constitution, Georgia Courts Authority, State Bar of Georgia,. Georgia statute shows otherwise. 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

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responsibility for judgments entered against the entity. See Manders, 338 F.3d at 1309.” DeKalb County, DeKalb Probate Court, DeKalb State Court and DeKalb Solicitor’s Office cannot be 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 Grech v. Clayton County, Georgia, 335 F.3d 1326 VERSUSLAW (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. §§ 36-1-3 (“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 19

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)20: 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 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, 572573, 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 20

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sovereign immunity the municipality possessed." Id., at 647-648, 100 S.Ct., at 1413-14 (footnote omitted).” “The Probate Court and the Magistrate Court of a county are funded entirely by the county. That includes the salaries for the 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 “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 “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 Petitioner has been denied due process of law; his assets and other property 21

has been seized without due process of law on the falsified claim that he was guilty of elder abuse and financial fraud by a Probate Clerk in violation of Georgia statute and Georgia’s Constitution. Petitioner, never “charged and tried as required by law” was “denied any trial at all” for which the Fourteenth Amendment is supposed to “protect the individual against state action” in which the “federal interest has existed for at least a century”. 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 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.” Petitioner was accused, released and killed. Suffering multiple disabilities, one of which is acute Bi-Polar Disorder. Petitioner has only his integrity and reputation. That was taken from him by acts of persons under color of law. Officer Porter continues to state Appellant is guilty. The Court of Appeals and District Court goes further and attempts to have one believe that this case was

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brought because Officer Porter and other defendants “caused Plaintiff ‘to lose custody’ of his aunt,21 quoting Porter’s Appellee Brief. Georgia’s 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”. 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 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 . Petitioner 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 Petitioner legal counsel and the Right to clear his name. Porter knew there’d be no hearing, he’d never face the accused in Court. 21

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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. Petitioner, as well as his aunt have had their Rights grossly violated by Respondents. Petitioner’s aunt paid the ultimate price, she died from the acts. Judge Duffey makes reference that Petitioner did not bring a wrongful death case, and failed to plead the aunt’s Rights violations. Upon receiving the records from the home where Ms. Caffrey was confined, Petitioner did contact several attorneys on the matter and was told because Petitioner was not Personal Representative or Administrator of Caffrey’s Estate, that he could not bring an action related to her death. Thus, the reason DeKalb County Probate Court keeping jurisdiction, when the matter of the Wills should have gone to a different County,22 and the although Ms. Caffrey obviously had no property and did not consider Stone Mountain and DeKalb County her “home” any longer 22

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falsification of many items on the death certificate, especially the “residence” which was an address that did not exist comes to light. REASONS FOR GRANTING THE WRIT Petitioner has suffered manifest injustice. The Rulings in District Court and the Court of Appeals shows to DeKalb County, Superior Court, State Court and the other named Defendants, that it is acceptable to abuse, and violate the Rights of disabled, and/or Pro Se litigants; that Citizens of Georgia, and Citizens of the United States falling within these categories have less Rights than prisoners. Georgia has already shown a pattern of violating the Rights of disabled citizens, and Rights of Pro Se litigants. The pattern must not be allowed to continue. This Supreme Court, the Highest Court of the land, must step in and let these entities know that this unacceptable treatment of United States and Georgia Citizens must cease and will not be tolerated.

CONCLUSION

The petition for a writ of certiorari should be granted.

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Respectfully submitted this 20th day of January, 2009,

By: ______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782

No. ___________________________ _______________________________ IN THE 26

SUPREME COURT OF THE UNITED STATES ___________________________________ JAMES B. STEGEMAN – PETITIONER VS. STATE OF GEORGIA, et., al., - RESPONDENTS ___________________________________ PROOF OF SERVICE I, James B. Stegeman, do swear or declare that on this 20th day of January, 2009, as required by Supreme Court Rule 29, I have served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days, as follows: Devon Orland, Esq. Office of State Attorney General 40 Capital Square, SE Atlanta, GA 30334

Mr. Peter C. Brown Carothers & Brown 278 West Main St. Buford, GA 30518

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Brenda R. Raspberry DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030

I declare under penalty of perjury that the foregoing is true and correct, this 20th day of January, 2009

________________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782

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