Response To Officer Porter's Motion To Dismiss

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FILED IN CLERKS OFFICE U.S.D .C. Atlanta

FEB 2 $ 2007 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIAA MES N . H AT r EN , CLERK ft rkhow r ATLANTA DIVISION ~.~ JAWS B STEGEMAN, ) Plaintiff } v

CIVIL ACTION

) FILE NO. : 1 :06-cv-02954WSD

STATE OF GEORGIA, thru GOVERNOR } SONNY PERDUE, In His Official Capacity ;) STATE OF GEORGIA DEPARTMENT ) OF HUMAN RESOURCES ; ) DEKALB COUNTY, thru CEO VERNON ) JONES In His Official Capacity ) DEKALB COUNTY DEPARTMENT ) OF FAMILY & CHILDREN SERVICES ; } DEKALB COUNTY FIRE & RESCUE ) LT . HUGHETT - NO: 5 81 In His Official } Individually and in His Official Capacity ; ) EMS MEDIC DENNIS OARLOCK } Individually and in His Official Capacity ; } STONE MOUNTATIN POLICE OFFICER) R.B . PORTER BADGE, # 119, Individually } and in His Official Capacities ; ) DEKALB COUNTY PROBATE COURT ; } PROBATE JUDGE JERYL DEBRA ROSH) Individually and in Her Official Capacity ; ) GEORGIA SUPERIOR COURT, STONE ) MOUNTAIN JUDICIAL CIRCUIT ; ) } STATE COURT OF GEORGIA ; DEKALB COUNTY SOLICITOR'S OFFICE; } JANE DOE O1--100; ) JOHN DOE 01-100 ; } } Defendants )

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PLAINTIFF'S OBJECTION AND RESPONSE BRIEF TO DEFENDANT OFFICER PORTER'S MOTION TO DISMISS COMES NOW, James B . Stegeman Plaintiff and files his OBJECTION

AND BRIEF TO DEFENDANT OFFICER PORTER'S MOTION TO DISMISS.

RESPONSE BRIEF IN SUPPORT OF PLAINITIFF'S OBJECTION TO DEFENDANT OFFICER PORTER'S MOTION TO DI SMISS Officer Porter's Brief In Support of Defendant Officer R.B. Porter's Motion To Dismiss, page 2 11 : starts by claiming Plaintiff's complaint is "barred by the applicable statute of limitation" ; Secondly, "state law claims are barred by his failure to provide ante-litem notice . . ." ; Thirdly, "this Court lacks subject-matter jurisdiction . . the Rooker- Feldman Doctrine" ; these all fail as a matter of law . I. FACTS R.B. Porter is a Police Officer with the City of Stone Mountain Police Department, as such he has sworn an Oath' to honor the Constitution, uphold and

' Law Enforcement Code of Ethics, published by the International Association of Chiefs of Police : * "As a Law Enforcement Officer, my fundamental duty is to serve mankind ; . . .safeguard lives . . .property ; to protect the innocent . . ., the weak against oppression or intimidation, . . .the peaceful against violence, . . ; and to respect the Constitutional rights of all men to liberty, equality and justice ." * "I will keep my private life unsullied as an example to all ; maintain courageous . . . ; develop self-restraint ; . . .the welfare or others . Honest . . . both my personal and official life, . . . exemplary in obeying the laws of the land and the 2

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abide by the law and protect. Officer Porter violated his Oath of Office, failed in setting a good example, respecting the laws, being honest, adhering to all Rules and Procedures pertaining to his Official Duties . Porter conspiredd in the deprivation o f Plaintiffs Civil R.ights2, neglected his duty to protect a, aided to

regulations of my department." * "Whatever . . . of a confidential nature . . .my official capacity will be kept ever secret unless revelation is necessary in the performance of my duty ." * "I will never . . .officiously or permit personal feelings, prejudices, animosities . . . friendships to influence my decisions . With no compromise for crime. . . relentless prosecution of criminals, I will enforce the 1aw. . .without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities." * "I recognize the badge of my office as a symbol of public faith, . . . accept it as a public trust to be held so long as I am true to the ethics of the police service . I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession.. .law enforcement." Z TITLE 18, U .S.C. SECTION 241 : If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; . .. They shall be fined under this title or imprisoned not more than ten years, or both ; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death . 'ref http://www.usdoj .gov/crt/crim/241fin .htm TITLE 18, U.S.C., SECTION 242 : Deprivation of Rights Under Color of Law "This statute 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 . . . ." 3

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"set-up" Plaintiff, thereby violated Federal and State Law and has destroyed the public's respect for and belief in Officers and the Law . Even an untrained Officer knows that crimes are investigated by law enforcement, not Case Workers without the training and authorization to do legal elder abuse investigations . Officer Porter having Faxed his reports to a case worker with Family and Children Services was deliberated to prevent the proper authorities from doing an investigation, and to prevent Plaintiff s ability to have legal aid represent him and protect

Plaintiffs Civil and Constitutional R ights.

"Acts under "color of any law" i nclude acts 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 author ity; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such offic ial is purporting or pretend ing to act in the performance of his/her offic ial dut ies. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc ., persons who are bound by laws, statutes ordinances, or customs ."

"Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap . . . or an attempt to k ill, shall be fined under th is title, or imprisoned for any term of years or for life, or both, or may be sentenced to death." http ://www.flai . o~ v/hq/c_idlcivilrights/statutes.htm 3 Nonfeasance -- failure to perform an act which one is obligated to do either by law or directive due to omission or failure

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Officer Porter conspired with other defendants to intentionally deprive Stegeman of property, Civil and Constitutional rights, immunities and equal protection4 under O.C.G.A. § 30-5-1, U .S. codes : Title 18 U.S .C. § 241, §242 (see fn12/ & fn13I}, Title 42 Chapter 126 § 1210I (Findings and Purpose), § 12102 (State Immunity), and § 12103(Prohibition against Retaliation) ; all are part of:

"Protection of Disabled" as shown in Plaintiff's complaint . The facts and evidence clearly shows that the disabled, Pro Se Plaintiff, is a victim of criminal acts by these defendants . Crimes which carry fines, sentences and jail time. T. ARGUMENT AND CITATION OF AUTHORITY Plaintiffls Claims Are Not Barred By Statute Of Lim itations 1 . The violations listed in the complaint are on-going, they have not stopped . 2. Plaintiff suffered his claims due to actions recognized as crimes by the State of Georgia and under the laws of The United States, Plaintiff is a victim of crime for which the statute of limitations is six yearns .

4 malfeasance : n . intentionally doing something either legally or morally wrong which one had no right to do . It always involves dishonesty, illegality or knowingly exceeding authority for improper reasons ._http :l/dictionarv.law.comJ: 5 O.C .G.A. § 9-3-99 . The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such

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3 . Further, Plaintiff has just recently discovered information that had been withheld in order to prevent his filing a complaint at an earlier date . 4 . Plaintiff alleges that he has been denied Due Process and Equal Protection : "Procedural due process requires the opportunity to be heard -this requires notice and opportunity to be heard . See Cleveland Bd. Of Educ . V. Loudermill, 470 U.S . 532, 542 (1985)" Plaintiff alleges that he was denied Equal Protection - he was

treated differently from similarly situated persons and this treatment was the result of state action . "(T)o properly plead an equal protection claim, a plaintiff need only allege that through state action, similarly situated persons have been treated disparately." Thimen v. Bibb County, Ga ., Sheriff s Dep't. 233 F .3d 1231, 1237 (11 ~' Cir. 2000). 5 . Because Officer Porter along with defendants "Hughett" and "Carlock" conspired with each other and others to deprive Plaintiff of his Civil and Constitutional Rights, falsifying reports and documents, perpetrated a fraud6 . 6 . The aspersions cast by the defendants against the Plaintiff alleged that he

alleged crime committed in this state . . . provided that such time does not exceed six years .

6 extrinsic fraud : n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit

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was going to kill his elderly aunt . Plaintiff has had to borrow quite a bit of money for defending himself.' 7 . Plaintiff has lost personal items, all inheritance, been a victim of grand larceny . The acts of these defendants were more than grossly negligent or malicious, the acts were vile and evils, with the intent of harm . Facts 8. June 4, 2002 Ms . McDonald called EMS for assistance9, Ms . Caffrey was lying on the floor, claimed to have fallen . Complaint page 12 ¶ 37 . 9 . EMS arrived, Carlock and Beamon and "Hughett", three persons dressed as and representing paramedics . Stegeman, legal representative of Caffrey, and neighbor Al Thompson, replaced McDonald at the home . Complaint pg 12 138. 10 . Caffrey was examined, Plaintiff was told that nothing was wrong with her . Plaintiff requested Caffrey be taken downstairs, the safest place for Caffrey was downstairs where her wheelchair was . Oarlock called Stone Mountain Officer calumnv : n . the intentional and generally vicious false accusation of a crime or other offense designed to damage one's reputation . g www.lawdictionary.com: moral. turpitude:: n. gross violati on of standards of moral conduct, vileness . An act involving moral turpitude is cons idered intentionally evil, making the act a crime. The existence of moral turp itude can bring a more severe criminal charge or penalty for a criminal defendant . 9 Caffrey suffered from extreme osteoporosis and was taking blood-thinners due to suspected stroke . 7

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Porter instead. Complaint page 12 ¶ 3 9 9.

According to reports, at this point, Oarlock called Officer Porter in, claiming

that Plaintiff was preventing examination of Caffrey, complaint page 13, ¶ 40 . 11 . Neither Porter's Family Violence Report 10 nor his "Original Report" have listed the time the 911 call came in, time of "dispatch, time for "arrival at the

scene", which all hinders in trying to defend oneself in a Court of law, see

complaint's "Exhibit 9". 12 . Ms . Caffrey suffering "Symbolic Disorder", mid to mild cognitive, senility, dementia was incompetent ." i See complaint Exhibit 4, Exhibit 32 page 1 T 2 a & b .

13 . Caffrey obviously could not understand what she was being told or what was happening when she was coerced by defendant "Hughett" and removed from her

to http:l/www.georgiadefenders .com/assault .kidnapping .htm: family violence : If you commit a battery, simple battery, simple assault, stalking, damage to property, unlawful restraint, criminal trespass, or any felony, upon any of the following persons, it is considered family violence : Past or present spouses Persons who are parents of the same child Parents and children ; Stepparents and g or formerly stepchildren ; Foster parents and foster children ; Other persons living living in the same house. 1 z incompetent : adj . 1) referring to a person who is not able to manage his/her affairs due to mental deficiency

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home, at that point Caffrey was kidnapped or illegally abducted .'2 Oddly when EMS arrived at hospital, there were only two paramedics Oarlock and Beamon . Obviously "Hughett's" part was as Fire Dept personnel, with no reason to be at

Caffrey's home, she committed an act beyond her authority, then falsified reports . Falsified 13 EMS and Police Reports; (a) June 04, 2002, according to DeKalb Fire & Rescue Patient Care : Medic i : Oarlock, D.D. ; Medic 2: Beamon, Roland . 911 call: 8:00am; Report

12 abduction : n. the criminal taking away of a person by persuasion (convincing someone she is better off leaving with the persuader), by fraud, or by open force or violence . " Bouvier's Dictiona Falsehood : "A willful act or declaration contrary to truth . It is committed either by the willful act of the party, or by dissimulation, or by words." "Falsehood by word is committed when a witness swears to what he knows not to be true . Falsehood is usually attendant on crime . Roscoe, Cr . Ev. 362 .". "It is a general rule, that if a witness testifies falsely as to any one material fact, the whole of his testimony must be rejected but still the jury may consider whether the wrong statement be of such character, as to entitle the witness to be believed in other respects . 5 Shep l. R. 267 . See Lie." "2. B the Act of Congress of April 30 1790, s. 15, 1 Story's L. U. S . 86, it is enacted, that if any person shall feloniously steal, take away, alter, falsify, or otherwise avoid, any record, writ, process, or other proceedings in any of the courts of the United States, by means whereof any judgment shall be reversed, made void, or not take effect ; or if any person shall acknowledge, or procure to be acknowledged, . . ., shall be fined not exceeding five thousand dollars, or be imprisoned not exceeding seven years, and be whipped not exceeding thirty-nine stripes' . Provided nevertheless, that this act shall not extend to the acknowledgment of any judgment or judgments . . ., for any person or persons against whom any such judgment or judgments shall be had or given ." 9

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Unit 11 response : 8:03 ; at scene: 8:10; at patient : 8:1 lam.; En route hospital : 9:08; arrived hospital : 9 :27; back in service : 9:54am. No one listed as driverlmedic 14 ; the driver to and from the scene was defendant "Hughett" Defendant "Hughett is not listed anywhere on this report . (Exhibit 8 attached to complaint) (b) Event Lo Report obtained from Stone Mountain City Police Department, Recd call : 08:29; Dispatched : 08 :30; Arrived: 08 :32 ;

Cleared : 09 :14; Domestic Disturbance, Signal : 87 ; Case: 0206021 .5 Log Report attached hereto as "Exhibit I", (c) Officer Porter's Family Violence Report, complaint Exhibit 9 page 3,

¶ 6: "EMS Lt. Hughett, No . 5 81 . . .Determined that Ms . Caffrey best interest could be served by transporting her to Northlake Regional". Where as DeKalb Fire & Rescue Patient Care Re ort last two sentences : "Transported to NRMC, at Pt's

request." "Pt . does not need to go back to same location, could possible die under 14 Defendant "Hughett" is not listed on the report . "Hughett" was the driver of the ambulance. Plaintiff only recently learned that Captain Hughett, Lt . Hughett at the time of incident, and referred to by Officer Porter as EMS Lt. Hu iett, was a Firefighter Lt. Hughett~ not EMS although she was dressed as and m isrepresented herself to Plaintiff as EMS . Defendant "Hughett" was on the scene in the capac ity of "firefighter", not paramed ic. is NOTE : None of the times were included on Officer Porter's : Family Violence Report, Stone Mtn . P.D. Original Report or Stone Mtn . P.D. Supplemental Re ort, all of which were signed by a Sergeant (Policy maker) .

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nephew's care .". (d) Both EMS report and Officer Porter's reports would have you believe that immediately after EMS arrived they met Ms . Caf&ey, immediately had to call in Officer Porter to have Plaintiff removed so that they could examine Caffrey . (e) According to the time logged in EMS report, ¶ (a) above, they sat around for 18 minutes with Caffrey lying of the floor and did nothing while Plaintiff ranted and raved. That is why there are no dispatch, arrival, departure times listed on the Police report . 16 13 .

Family, Violence Re rt referred to hereinafter as "FVR", City of Stone

Mountain Police Department "Qri final Report" referred to hereinafter as "OR" . a) "FVR" : Incident Tie: Verbal Dispute. Complainant: EMS R- 11 ;

Victim: Jean S . Caffrey, Date of Birth : 11/29/191.11. Residence Phone : left blank.l8 b) "OR" : Porter : "Further investigation. . .Caffrey resides alone . . .being confined to certa in areas ofthe home. . .no phone in the home".

`6 Misfeasance -- performance of a duty or act that one is obligated or permitted to do in a manner which is improper, sloppy, or negligent (e .g., report writing) 1 ' Date of Birth was November 22, 1911 . 18 Caffrey phone # : 770-469-4840 .

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:There was no evidence of confinement. Not only was there a

phone, but also a "Companion" Response Service staffed by Medical personnel, sitting on a table in plain view, upgraded to Level 2: "Companion So cial Companionship Service (Social)"-used for both emergency and social interaction,

the device was working and active, indicated by the red light which was on . See attached documentation o f the "Companion" Exhibit 2. c) Primary Aggressor was left blank 19. Box 3- # previous complaints as advised by victim: Porter : 1-5 *Reality: There had been no domestic disturbance or family violence complaints20 : See "Exhibit l." showing a Stone Mountain C ity Police Department printout dated 08/13/2002 which shows 5 incidents : (1) 10/08/1999 : "suspicious

person" called in by Plaintiff after neighbor advised they had seen someone snooping at Caffrey's house; (2) 05/03/2001 : Sandra Al-Khaja, false DFACS complaint by Mavis Turner, refer to complaint pgs . 1 4-12 ; (3) 05/12/2002 : car had

rolled into Cafrrey's side yard, Plaintiff called in; (4) 06/04/2002: Domestic Disturbance; (5) 06/24/2002: Sandra Al-Khaja and Mavis Turner were to get the 19 There was no Primary Aggressor, this would be correct in the report . 20 Plaintiff has never had domestic disturbance or family violence accusations before, there should not have been a family violence report this time, no supporting evidence . Conspiracy : Guardianship Hearing Al-Khaja claimed Plaintiff had "his#orv of violence" 12

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keys to Caffrey's house . d) Box 4 : Existence of Prior Court Orders : Porter : Unknown. Box 5 Was victim advised of available remedies and services? : Yes. Box b : Type and extent of alleged abuse by the primary marked : "11-Other" with no explanation. Box 7 : Police Action Taken: marked "3-Seperation" . If no arrest was made why ot? : marked "3-Insufficient probable cause" AND marked "4other reasons" with no explanation . Box 8 : How was primary aggressor me r identified? : marked: "2-testimonial evidence " . Box 10 : Relationship of pr im a essor to victims : marked: "9-None of the above, but lives in same household or formerly lived in household ." (See fn\10/ for reason for Porter's lie about Plaintiff living with or having lived with Caf&ey) Box for information about Witnesses : LEFT BLANK. Box : Clear: only thing marked by Porter "Adult" . Then has: " See narrative"; "Entered 6/13" with a big X through it, then "Entered

6119" *Reality: 1) Officer Porter intentionally om itted the fact that there was a witness . 2) If Ms . Caffrey was a victim of anything it would have been of having fallen ; 3) complainant was Oarlock according to the "reports" if there was a victim of Family Violence it would have been the complainant . 4) Ms . Caffrey's DOB : 11/22/1911, she advised the wrong birth date .

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5) IF Officer Porter had in fact

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investigated : a) Ms . Caffrey was not "being confined", Ms . Caffrey lived "alone" b) there were no barriers and she was not locked in, so how was Caffrey confined and by whom? No supporting evidence to date . c) "Phone" was on kitchen wall, phone # : 770-469-4840" d) Companions response system was on a table, the light

was on showing it was "active", plugged in and in working condition . e) "FVR" : Primary Aggressor : left blank; "OR" : Porter : "Mr. Oarlock stated . . . Mr. Stegeman was being very verbal and would not let them conduct their examination of Ms . Caffrey" * Reality: Witness and Ms . Caf&ey both testified at Guardianship hearing under Oath stated that Plaintiff never even spoke to Caffrey . The facts are clear . Falsified EMS and Police Reports were intended for use and have been used for the purpose of Civil and Constitutional Rights violations of the Plaintiff. Those who have sworn an Oath to protect, abide by the laws and Constitutions of the United States and The State of Georgia have a total disregard for the law and have. no fear of charges for their illegal acts . Plaintiff recently discovered that "Hughett" was at the incident as a Fire Dept personnel to declare Caffrey's house unsafe, the reason DEKaIb Safety went directly to the gas stove when they arrived on the scene . Plaintiff until recently thought that what was meant by "life at risk under nephew's care", was that he was

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physically or mentally abusing her, the claim made by Ms . Turner. In fact, "Hughett" was claiming that Plaintiff would cause his aunt's death from the house being unsafe itself. "Hughett" is Fire Dept personnel as such could not claim "abuse", she was claiming neglect or that the house was unsafe and thereby Plaintiff was going to cause the deathh of his aunt . Plaintiff has given evidence of falsified documents, allegations that he planned to kill his aunt, discrimination, lack of concern for the Rights of the disabled and elderly, violations of Oaths, Rules, Procedures; the policymaker's, and the defendant's malfeasance, misfeasance and nonfeasance partnered with extrinsic fraud involved in the violations of the Civil and Constitutional Rights of a disabled man and caused the death of an elderly incompetent iady .2r Governor Perdue a final policymaker22, set the policy when her responded to Plaintiff's pleas for help concerning Stone Mountain Park . It is a "do nothing" policy . Someone files a complaint asking for help stating they are disabled have

21 Because of Caffrey's diminishing mental capacities, it was easy for these predators to illegally take her from her home . 22 U.S. Laws, Codes, Statutes: Article V . Executive Branch II: § Duties and Power of the Governor : Paragraph I . Executive Powers: The chief executive powers shall be vested in the Governor . The other executive officers shall have such powers as may be prescribed by this Constitution and by law . Paragraph II. Law Enforcement. : The Governor shall take care that the laws are faithfully executed and shall be the conservator of the peace throughout the state. 15

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no money, needs help . Governor Perdue's policy is to tell the complainant "There's nothing I can do", knowing that a disabled person who has no money can be ignored with no fear of consequences as final policymaker . In turn the Sergeant at Stone Mountain City PD also a final policymaker, knowing that the State's final policymaker has set the policy of ignoring violations against the disabled, socially and economically disadvantaged Citizens of Georgia, signs off on a clearly falsified document knowing there will be no consequences to the action . The allegations along with the "master plan" of these defendants came close to having Plaintiff arrested for attempted murder . Had he not borrowed a great deal of money to fight, he may have gone to prison . All the while the Plaintiff contacted and complained to everyone and anyone, the persons who are obligated by federal and state statute and by Oath of their' Office failed to prevent the illegal wrongs . 11.

Ante-Litem Notice No t Applicable

As pointed out to "State" defendants : PLAINTIFF'S OBJECTION AND BRIEF TO DEFENDANT'S PRE-ANSWER MOTION TO DI SMISS page 15 : (2) Failure To Send Ante Li tem Notice is not applicable in this Civil Action. Howlett v . Rose 196 U.S. 356 (1990) and Felder v . Casey, 487 U.S. 131 (1988)

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shows that State law sovereign immunity and state law limitations on damages "do not protect local governments from liability under § 1983" and State laws requiring pre-suit notification prior to initiating an action against the state or it's subdivisions similarly do not apply . Plaintiff contacted everyone necessary, some more than once, insisted that his Civil and Constitutional Rights were being violated, the answer to him was the same: "I cannot help you", "it's not my job" .

The fact is plainly seen, the Plaintiff either himself or Ms. McDonald, filed complaints with every possible person, agency, Administration, enforcement division within the State of Georgia . When all was said and done, the final policymakers had set the policy : If a person, belonging to a protected class of

persons, has no money, ignore him and he will go away . Policy was set by the Governor Sonny Perdue, now it is a "custom, policy or rule" . Furthermore, even untrained Police Officers, Sergeants and EMS personnel would know the proper authorities to contact for elder abuse or elder neglect ; they would know that only law enforcement investigators investigate criminal acts and that DFACS case workers do not have law enforcement personnel that can conduct criminal investigations . Facts clearly show that both the disabled Plaintiff and his elderly disabled

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aunt had their Civil and Constitutional Rights violated and they were both victims of crimes. Ms . Caffrey was abducted and died23 during the commission of Civil Rights violations by the defendants abusing their positions "under color of law" . Further, Stone Mountain Police Officer Porter has no immunity from the damages he caused when violating Plaintiffs Civil and Constitutional Rights,

shown in Owen v . City f Independence, MO 455 U.S . 621 1980 and Monnel v. Dept. of Social Services of New York, 436 U. S . 658, 699-700 1978 "Local Governments have no immunity from damages from their constitutional violations, and may not asset the good faith of it's agents as a defense to liability" . III. The Rooker-Feldman Is Inapplicable

"It has long been the law that a plaintiff in federal court can seek to set aside

23 htt :l/diction .law.coml: kidnapping: n. the taking of a person against his/her will from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation . . . . Abduction : n. the criminal taking away of a person by persuasion, by fraud, or by open force or violence Murder: n . the killing of a human being by a sane person, with intent, malice aforethought and with no legal excuse or authority. In those clear circumstances, this is first degree murder . By statute, many states consider a killing in which there is torture, movement of the person before the killing (kidnapping) or it was as an incident to another crime, to be first degree murder, with or without premeditation and with malice presumed . Second degree murder is such a killing without premeditation . Malice in second de ee murder may be implied from a death due to the reckless lack of concern for the life of others

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a state court judgment obtained through extrinsic fraud . in Barrow v. Hunton, 99 U.S . (9 Otto) 80 ( 1878 the Supreme Court distinguished between errors of the state court, which could not be reviewed in federal court, and fraud on the state court, which could be the basis for an independent suit in circuit court . (The federal circuit was a trial court at that time .}" Plaintiff has claimed that the acts of defendants were in fact "fraud upon the court" which led to the decisions of the court, not errors and the acts were acts of extrinsic fraud.

CONSLUSION Plaintiff's case has presented as a prima facie : (pry-mah fay-shah) adj . Latin for "at first look," or "on its face, " referring to a lawsuit or crim inal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial . A prima facie case presented to a Grand Jury by the prosecution will result in an indictment . The defendants have not addressed the documents or claims in the complaint . Plaintiff in this Civil action would have much preferred legal counsel to represent him in this matter, his choice was not to be a Pro Se litigant . Plaintiff diligently tries to follow and abide by all The Federal Rules of Civil

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Procedure as well as the Local Rules and the Instructions from the Court . Lacking the knowledge and experience of an attorney, Plaintiff assures this honorable Court. If in fact there are grounds for Dismissal on any or all of the claims, Plaintiff further respectfully MOVES this Honorable Court to allow the Complaint to be Amended to satisfy the Counts and Claims . Plaintiff believes that there are things that need to be changed within the complaint and will be filing for Leave to Amend, but has yet to do so. As Plaintiff has shown, he did everything Humanly possible to take care of this matter without filing suit . Plaintiff filed complaint after complaint to deaf ears, even to the point of having to beg for help . Based on the foregoing, Plaintiff, respectfully MOVES this Honorable Court to Deny Dismissal of this Civil Action .

Respectfully Submitted this 27 " day of February, 2007 .

JAMES B . MAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 897-8737

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CERTIFICAT E O F COMPLIANCE In compliance with LR 7 .1D, N.D. Ga ., I certify that the foregoing Motion has been prepared in conformity with LR 5 . 1 , N.D. GA. This Motion was prepared with Times New Roman (1 4 point) type, with a top margin of one and one-half (1 .5") inches and a left margin of one (1") inch, is proportionately spaced .

This 27 "' day of February, 2007

`-JANffis

B. ___SiEGF6rAN, Pro Se .821 She -Zrd Rd Stone Mountain, GA 30 $3 (770) 879-8737

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n ow : . ,..

Case 1:06-cv-02954-WSD

Document 40-1

Filed 02/28/2007

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was mailed to the defendants through their attorney on record by causing a true and correct copy of same, to be deposited into The United States Postal Service, proper postage affixed as follows : Matthew R. LaValle Daley, Koster & LaValle, LLC Overlook 1 2849 Paces Ferry Rd ., Suite 160 Atlanta, GA 30339 Mr. Carothers 278 West Main St Buford, GA 30518 Brenda A. Raspberry

DeKalb County Law Department 1300 Commerce Drive, 5t" Floor Decatur, GA 30030 .: This 27th day of February, ~007 .

/ 1

r

3AMES o Se 821 Shepp rd Rd Stone Mountain, GA 30083 (770) 879-8737

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