Page

QUESTIONS PRESENTED ........................................................................................i

TABLE OF AUTHORITIES ....................................................................................... iii

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED .......................iv

JURISDICTION ............................................................................................................1

OPINIONS BELOW...................................................................................................... 1

IMPORTANT QUESTIONS; WAS IT A FAIR TRIAL? .............................................7

STATEMENT OF THE CASE .......................................................................................1

WAS IT A VIOLATION OF DUE PROCESS AND

EMINENT DOMAIN OF CONSTITUTIONAL RIGHTS?...........................................14

FACTUAL SUMMARY .................................................................................................18

LEGAL DISCUSSION ....................................................................................................24.

REASONS FOR GRANTING THE WRIT ....................................................................28

CONCLUSION ...............................................................................................................30

iii

APPENDIX A .....Memorandum (Unpublished)

United States Court of Appeals for the Ninth District

APPENDIX B .....Dismissal (Unpublished)

United State District Court for the District of Southern California

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Constitution of United States Page

Articles I, Section 9,(8) 8

Article II 9

Article III, Section 1, 9

Amendment XI 9

Amendment IVX 10

Civil Rights Act OF 1871, 11

Title 42 Sections 1983. 1985. 1986, 1988 11

28 U.S.C. 1331 AND 1343 (a). 11

U.S. Supreme Court

Adickes v. S.H. Kress & Co., 398 US 144 (1970) 16

Bray V. Alexandria Women’s Helath Clinic, 506 US 263, 122 (1993). 16

ExParte Virginia (1879) 100 US 339, 25L.Ed 676, 25

Forrester v. Wjite (1988) 484 US 219, 108 S.Ct. 538, 98 L.Ed.2d 555 25

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982). 14

Will v. Michigan Dept. Of the State Police. 491 U.S.58, 71 12

Mireles v. Waco ,112 S.Ct. 286, 287,116 24

Monell v. New York City, 436 U.S. 658, 98 S. Ct. 2018, 56 (1978). 13

Monroe v. Pope, 365 U.S. 167, 172 (1961). 10

Pulliam v. Allen (1984) 466 US 522, 529, 104 S.Ct. 1970, 80 L. ed.2d 565 24-28

Stump v Sparkman (1977) 435 US. 349,98 S.Ct. 1099,55 L.Ed.2d. 331. 24-26

Scheuer v. Rhodes, 416 U.S 232,243 12

United States v. Tille, 729 F.2d 615. Cert. Denied, 469 U.S. 845 (1984) 15

Federal Civil Rights Acts (2d Ed) ss 276-277. 11-16

28 USC s 1343(a)(3) 4

42 U.S.C. S , 1983, 1984,1985(2), (3), 1986 11

Fireman’s Ins. Co. v. Washburn County, 2 Wis. 2d 214, 85 N. W. 2d 840 (1957) 11

Hodgson v. Scarlett, 106 Eng. Rep. 86, 91 (K.B. 1818), 9

Kimes v. Stone, 84 F.3d 1121 (9^th cir. 1996), 7

North Star International v. Arizona Corporation Commission, 720 F.2d 578,580

(9^th Cir. 1983). 4

Rabon v. Rowen Memorial Hosp. Inc. 269 NSI, 13, 152 S.E.2d 485, 493 (1967) 11

,110 Cal. Rptr. 353, 515 Pac. 2d 297; 25

United States v. County of Humboldt. 628 F.2d 549, 551, (9^th Cir 1980). 4

Shore v. Howard, 414 F. Supp. 379 11

Tofano v. Supreme Court of Nevada, 718 F.2d 313, 314, (9^th Cir. 1983) 5

Wolf-Liffie v. Senquist, 699 F.2d 864 (7^th Cir. (1983), 13

Rankin v. Howard, 633 F. 2d 844. 19

Code of Civil Procedure 635 and Special Matter Order No. 091994 17

Civil Code §4370.5 now Family Law Code §271 23

Civil Code of Procedures 259 17

Civil Code §4800(a) now Family Code §2550 22

The Federal action arises under the United States Constitution’s 14 th. Amendment and under

42 U.S.C. Section 1983, as a federal civil rights action, raising federal question under 28 U.S.C.

1331. This action raises questions whether state bench officers are personally liable in damages and

subject to injunctive relief in a federal court where they intentionally violate litigants’ constitutional,

legal, and civil rights and or where their act completely without jurisdiction.

The memorandum from United States Court of Appeals for the Ninth District was affirmed

on March 23,1999 of the dismissal of United State District Court for the District of Southern

California.. The United States Supreme Court is only one that has the power to make the lower

court recognize the Constitutional Rights of an individual.

On April 30,1991 Thomas’ ex-wife Ellen Ricotta, hereinafter ELLEN, filed for divorce, in San Diego Superior Court Case, #DN 64053. Ellen’s attorney Paul E. Gavin, under the color of authority of the state law of California and with assistance of his criminal enterprise, perpetuated; grand theft, fraud , conspiracy, subornation of perjury, falsifying public and court documents, false affidavit, mail fraud, with his client, our two adult sons, his associate attorneys, his employees, and employees of the County Of San Diego to destroy a $925,000 net free an clear estate, so he could extort $100,000+ in legal fees that Thomas was sanction to pay. This criminal action gave Ellen over $400,000 in assets and cash, and per court order give the two adult sons $31,500 of Thomas’ inheritance, but through fraudulent order attorney Gavin gave the money to Ellen a grand total of $81,500.00. This was a marriage of 26 years with no violence of any kind, no dependent children. Thomas was retired from the San Diego County Sheriff Department for job incurred injury and received a disability pension.

Thomas’ disability pension was awarded to Ellen in violation of all California Law. Thomas was kicked out of the house he designed and built on 5 acres. It had 4,000 sq. Ft. of shops he built for his automobile business so he would be able to work at his own pace because of his medical problems. All this was free and clear of any debts.

Ellen was given the 5 acre estate, rent free house and shop, with no compensation to Thomas. She also had two adult sons and his girlfriend living with her. She allowed the sons to commit criminal acts; of theft, burglar, conspiracy and perjury and let them loot the business and other assets. After 3 ½ years what was left of the business was auctioned by court order and attorney Gavin took all Thomas’ half of the proceed towards his legal fee. He also took Thomas’ half of the bank accounts. This action left Thomas with no money or income, but his half of his disability pension since April 1991. Ellen’s last pleadings stated Thomas still owes her $51.000.00 more than his half was worth of the free and clear estate.

//////

Ninth Circuit stated that Thomas is trying to review state court action, but this case is about conspiracies of the state court and convicted attorney that did in fact cause him to lose $500.000.00 of property in two different states by the use of illegal court documents, committing Mail Fraud, Conversion Grand theft in another state. The question is how can they have jurisdiction in another state for a crime committed in that other state. The Feldman, 460 U.S. 462-483n 16(1983) or Rooker- Feldman doctrine does not preclude a federal district court from exercising jurisdiction under 42 U.S.C. Section 1983. Interfere with Civil Rights is a federal crime committed by the state court itself which would have to hear its own case against itself. As the evidence proves Thomas has tried to get every state agency to do something by complaints to; Commission on Judicial Performance, California State Bar, U.S. Attorney. District Attorney, State and Federal Grand Juries, seven writs, five appeals, three Appeals to State Of California Supreme Court. Jurisdiction is given under 28 USC s 1343(a)(1), (2) and under 28 U.S.C. Section 1257, District Courts have original jurisdiction over civil actions, or those based on deprivation of rights. Actions involving deprivation of rights under color of authority are within the jurisdiction of the Federal Courts and is given under 28 USC s 1343(a)(3). The District Courts have original jurisdiction of any civil action to redress that deprivation, under color of state law, of any Constitutional right or Congressional act providing for equal rights of citizens or persons within the United States jurisdiction. R.I.C.O. is federal, interstate sale of property with fraudulent documents in a federal crime and there is a question of eminent domain with the selling of my property without my authority or compensation, (Id. At 477-76n6). The sale of property was in violation of state law, which this state court ridiculed for even asking for Thomas due process rights. The orders were written and signed without 10 day notice.

The issues reached in state family law court are not being asked to be re-litigated, rather what is asked to be reviewed is the conduct of the court, the attorneys, the commissioner and pro tem judges and how this conduct violated appellants constitutional rights. This fact is pretty obvious since the state court action is still on going so there is no final state court decision to be re-litigated. In Feldman, supre, "a district court does have jurisdiction over a ‘general’ constitutional challenge that does not require review of a final state court decision in a particular case." Tofano v. Supreme Court of Nevada, 718 F.2d 313, 314, (9^th Cir. 1983)

The Ninth Circuit Court Of Appeals Court improperly dismissed the complaint as to the facts.

Thomas has alleged facts that were backed up with exhibits to prove the corpus delicti of the crimes. It is impossible for a pro se litigant to fight a battle against 22 attorneys on their own field without any legal education. He is not in pro se by choose, but because of the criminal acts of the defendants. Obviously if he was allowed to amend the complaint, as the law states, He would have more evidence. He has witness that are court personal that have told him that the (attorneys) pro tem judges play judge for each other and play this game on many other people by the use of their power as pro tem judges.

In civil rights cases where plaintiff appears pro se, federal court must construe pleadings liberally and must afford plaintiff benefit of any doubt; North Star International v. Arizona Corporation Commission, 720 F.2d 578,580 (9^th Cir. 1983). All material allegations in the complaint are to be accepted as true and all doubts are to be resolved in favor of the plaintiff. Ernest W. Hahn, Inc. v. Codding, 615 F2d. 830, 834-35 (9^th Cir. 1980). We may affirm the judgment on any basis supported by the record even if the district court did not rely on that basis. United States v. County of Humboldt. 628 F.2d 549, 551, (9^th Cir 1980).

Thomas was deprived of my Constitutional Rights through and by the judges, in the court system which the defendants, as co-conspirators, used and abused by the use of misleading facts, misrepresentations, and out right perjury, including subordination of perjury by attorney Paul Gavin, hereafter Gavin. The court then made rulings based on the above, not the Family Law Statutes, but in spite of them and beyond the scope of them. The state court refused to follow even the most basic of Family Law, even when the 4^th District Court of Appeals over turned their rules and for three years the Superior Court has refuse to hear the remanded issues. This evidence is all in court transcripts.

Attorney Murphey admits that the ruling of the judges in this case could have been "unconstitutional", On page 9 of his brief, Mr. Murphey states, " Even a liberal stretch of the FAC’S allegations of a conspiracy shows the only other assertions that could possibly support Ricotta’s conspiracy claims are that the judges allegedly made ruling against Ricotta which violated the law and were therefore "unconstitutional."

It is evident that Thomas has no assets, no property or any money from his estate; Attorney Murphey agrees that this might have been a violation of my "Constitutional Rights." The questions for this Court is, was it a fair trial? Was it a violation of Due process and Eminent Domain Constitutional Rights? The evidence of the irregularities in the proceeding of the court, the abuse of discretion, the admitted bias of the judges, lack of jurisdiction, admitted conspiracy between judges and Gavin. Also Gavin’s exparte with Judge Howatt, without Thomas, were all recorded on certified transcripts. His loss of property, and illegal judgement were used to seize all the money, in violation of court orders in two states, were all a violation of federal laws. (The only answer is that it is violation of his Constitutional Rights under s 1983).

Kimes v. Stone, 84 F.3d 1121 (9^th cir. 1996), The federal common law did not provide immunity for private parties accused of conspiring with a judge to deprive someone of their constitutional rights, therefore the attorney defendants are not entitled to immunity under federal law. Yet the case against Gavin’s Enterprise was dismissed also, without a factual or legal basis.

Title 42 U.S.C. s 1986, also holds every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent, neglects or refuses so to do, shall be liable.

In the Kimes v. Stone, supra, Judge Napoleon Jones, Jr., (the same judge as in this case), dismissed the case, but the Ninth Circuit overturned him. The Kime’s complaint alleged that Judge Stone and the Attorney Defendants conspired against Kimes in estate litigation, in state court by the use of fraud and deprived Kimes of due process of law and deprived him of property from his father estate.

Defendant Roy Garrett, hereafter Garrett, states that the illegal act committed should be addressed by the. State bar, (the state bar of California was closed down because of the lack of funding), state court, commission judicial performance, and the state legislature. This case proves that the state agencies fail in their duty to protect California citizen’s Constitutional Rights. The State Bar refused to even investigate Thomas’ 43-count complaint on Gavin, because he was not Gavin’s client even though he was on probation at that time. The verification of accusation about Gavin to the State Supreme Court was denied as 100% of such accusation are denied. Thomas’ complaint about pro tem judges and commissioners were denied because no agency had jurisdiction.

It is pretty obvious that the state is unable or unwilling to do anything about Federal Constitutional Rights in family law. It seems it is open season on any one in a domestic case and you do not have even the basic of constitutional rights. With one half the marriages of the United States ending in divorce. It is a national problem with 72% of those cases in San Diego are pro se. The Federal Court is the only authority which can correct the injustice.

The theory of immunity is self-serving and a perversion of our Constitutional Rights. It is a blatant violation of the American people’s trust in the judicial branch of government. It is this judicial activism that seeks to make its own laws. It remove the power of our vote and control us with the power of an un-elected official, who think they are immune from local or state or federal prosecution laws that govern the common people, and the laws by which we common people must abide. This theory of immunity was based on the common law of our English past. It was on the doctrine of, "The King can do no wrong." as extended to the king’s judges. This is an establishment of a royal class or royal authority in America. Which is the reason why our ancestors fled England and fought a war of revolution to free themselves of this tyranny. Article I, of the Constitution, section 9, "No TITLE of NOBILITY shall be granted by THE UNITED STATES. CONSTITUTION OF THE UNITED STATES, Article I, Section 9,

Limitations on powers granted to the United States. [Titles and nobility.]

(8). No titles of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign state.

What District Judge Napoleon Jones Jr. has decreed through self-serving case law is soveren immunity. It preempts the Constitution of the United State, and it amounts to crowning a king or noble person. Not even the President of the United States is immune, nor the Congress. Article I, deals with the Legislative Branch’s Powers. Nowhere does it say they grant the Judicial Branch immunity.

Article III, deals with the Judicial Branch. Nowhere does it grant them immunity.

1. Judicial Power Vested in Federal Courts

The wording "good behavior" surely could not mean that judges are immune from malicious and corrupt conduct.

CONSTITUTION OF THE UNITED STATES, ,Amendment XI, Judicial Powers

Since the county of San Diego is not a state, it is not immune from suit. The above Constitutional Articles show the judges, pro tem judges, and commissioners are also not immune from suit.

English jurisprudence has grown to permit civil judicial liability claims. If the argument for judicial immunity is founded on English Common Law it is rounded on an axiom that no longer exists. See Hodgson v. Scarlett, 106 Eng. Rep. 86, 91 (K.B. 1818), Kendillon v. Maltby 174 Eng. Rep.562.

The idea that judicial defendants are not the direct targets of Civil Rights Act is dispelled by the language of Section 1986:

The law addresses "every person," it does not exclude anyone, not even the state judiciary. If the "person" addressed by section 1983 et seq. is not the state judicial officer in court where the wrongs complained of occur, who is it? There is no one else in the court or anywhere else that has the power to prevent the wrongs described. The only person who fits the description in section 1986 of who "...shall be liable to the party injured." is the judge. The language and the intent of the legislators is too clear the circumvent and override existent doctrine and precedents. Since the civil rights act became law it has not been amended to exclude judicial defendants. The only immunity granted was by other judges improperly protecting their colleagues. Article II, of The Constitution does not give the power to write law to the judiciary, only congress has that power.

The acts by the state judges complained of were committed outside the strict confines of judicial authority. By acting outside the Constitution and their judicial authority, these perpetrators of Constitutional demise pierced their own veil of judicial immunity if any had heretofore existed.

Even if the state Judicial defendants successfully evade liability for civil damages by way of judicial immunity, the immunity does not extend to a claim for costs under Title 42 sect 1988 nor to injunctive relief and they should not be dismissed as defendants.

The loss of liberty, property and Constitutionally guaranteed civil rights that flowed from these persons operating under color of law, towards Thomas is therefore actionable under Civil Rights Act OF 1871, Title 42 Sections 1983. 1985. 1986, 1988 and this court has jurisdiction for all parties pursuant to 28 U.S.C. 1331 AND 1343 (a).

Judges, whose abuse the office is similar to that of the judicial defendants in this case, have been held liable for damages. The immunity question requires a balance between the evils inevitable in any available alternative. In situations of abuse of office, an action for damages may offer the realistic avenue for vindication of Constitutional guarantees."

The state courts have held that State Judges do not have immunity. It was most eloquently stated in Rabon v. Rowen Memorial Hosp. Inc. 269 NSI, 13, 152 S.E.2d 485, 493 (1967) that, " immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution, which caution and care is owed by the Government to its people."

In 42 U.S.C.A. 1983, and in Shore v. Howard, 414 F. Supp. 379 the court was definitive in saying, " There is no Judicial immunity to civil actions for equitable relief under the Civil Rights Act of 1871."

In the case of Fireman’s Ins. Co. v. Washburn County, 2 Wis. 2d 214, 85 N. W. 2d 840 (1957), it was decided that, "Government immunity violates the common law maxim that everyone shall have a remedy for an injury done to his person or property."

Through 42 U.S.C. 1983, Congress sought "to give a remedy to a party deprived of constitutional rights, privileges and immunities by an official’s abuse of his position." Monroe v. Pope, 365 U.S. 167, 172 (1961). Accordingly, it authorized suits to redress deprivations of civil right by person acting under color of any state statue, ordinance, regulation, custom, or usage." 42 U.S.C. 1983. The requirement of action under color of state laws means that the judicial defendants become liable for tortuous acts they commit precisely because of their authority as judicial officers.

Judicial defendants are state judicial officers sued in their individual capacities and are "persons" within the meaning of "persons" in 1983. Judges are unlike official-capacity defendants, who are not "person", because they assume the identity of the government that employs them. In Will v. Michigan Dept. Of the State Police. 491 U.S.58, 71 officers sued in their personal capacity come to the court as individuals and thus fit comfortably within the statutory terms "person," cf 491 U.S., AT 71, N.10. Moreover, 1983's authorization of suits to redress deprivations of civil rights by persons acting under color of state law means that judicial defendants may be held liable for the torts committed precisely because of their authority as judicial officials. Acts that are both within the official’s authority and constitute the performance of court functions should not be considered acts of the State that cannot give rise to a personal capacity action against these defendants. That contention ignores, that 1983 was enacted to enforce provisions of the Fourteenth Amendment against those who carry a badge of a state like I did. I was liable when I was a Deputy Sheriff. Judges represent that some capacity, whether they act in accordance with their authority or misuse it. Scheuer v. Rhodes, 416 U.S 232,243.

The 9^th Circuit, in an unanimous opinion, in Kalina v. Fletcher 3 F.3d 653,(1996), ruled whether 42 U.S.C. s 1983 creates a damages remedy against a prosecutor for making false statements of fact in a affidavit supporting an application for an arrest warrant, or whether, as she contends, such conduct is protected by " the doctrine of absolute prosecutorial immunity." It was affirmed by the U.S. Supreme court, that she did not have immunity.

ISSUE III. Whether the District Court correctly concluded discrimination of pro se litigants was not an unconstitutional policy or custom of the San Diego Superior Courts.

Thomas witnessed discrimination of pro se himself when he was a bailiff. In Monell v. New York City, 436 U.S. 658, 98 S. Ct. 2018, 56 (1978). The Supreme Court concluded, "It is when execution of a local government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the local government as an entity is responsible under 1983," Id. At 694, 98 S. Ct. At 2037.

The Court further stated that "local governments. May be sued for constitutional deprivations visited pursuant to government ‘custom’. Even though such custom has not received formal approval through the body’s official decision making channels" Id. At 690-90,98 S.Ct. At 2036. Under these standards of the Supreme Court and in view of the record there is substantial evidence to supports the county’s policy or custom proximately caused constitutional deprivations.

In Wolf-Liffie v. Senquist, 699 F.2d 864 (7^th Cir. (1983), the County contents that municipalities, their agencies and their supervisory personnel cannot be held liable under section 1983 on a theory of respondent superior. They can, however, be held liable for deprivations of constitutional rights resulting from their policies or customs. Monell v. Dept. Soc. Ser. Spura,Ybarra v. Reno, 723 F.2d.675, 680-81 (9^th Cir.1984; Wanger v. Bonner, 621 F2d. 675, 680 (5^th Cir. 1980),

Moreover, before dismissing pro se civil rights complaint for failure to state claim, district court must give plaintiff a statement of the complaint’s deficiencies. Fed. Rules Civ.Proc.Rule 12 (b)(6), 28 U.S.C.A.; 42 U.S.C.A. SECTION 1983. ` Thomas has never received complaint of deficiencies

Paul Gavin and none judicial defendants.

Gavin individually, conspired with Guillotti, Ellen Ricotta, and Garrett to

misrepresent law and facts to the court, hold hearing without proper notice, and in some no

notice. The lack of notice deprived Thomas of the ability to respond. Gavin conspired with

judges, and did not follow guidelines, which insure the due process rights of citizens. Due

Process is a right given to all citizen except in Family Law. When a pro se asks a judge to

follow the law they think you are challenging their authority.

Violation of Constitutional Rights can be imputed to private individuals through the Fourteenth Amendment by showing defendant engaged in state action. Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982). The deprivation must be caused by the exercise of some right or privilege created by the state or by rule or conduct imposed on the state or by a person for whom the state is responsible.

The family court did take Thomas’ property in violation of U.S.C. s 1982. The court sold his property without his signing the deed, then gave his share of the money to attorney Gavin, toward the balance of his $100,000.00 bill, that he had been sanctioned to pay, and to his ex-wife before his appeals could be heard. This action was in violation of two judge’s orders and without due process. Title 42 U.S.C. s 1982, enacted to protect the taking of personal and the right of eminent domain.. There is enough evidence to show that Gavin conspired with Meyer, then Judge Wagner’s decision about Pro Tem Meyers recusal was a violation of his civil rights, and was not within her jurisdiction, then Meyer was not a judge. It was violation state law to let him continue to be a pro tem judge. If attorney Meyer is not a state actor, but a private person can be personally liable under, Kimes v. Stone, supre. and Dennis v. Sparks, supre, In the Kimes v. Stone, Judge Napoleon Jones, Jr. dismissed the case, but the 9^th Circuit overturned him. The Kime’s complaint alleged that Judge Stone and the Attorney Defendants conspired against Kimes in estate litigation, in state court by the use of fraud and deprived Kimes of due process of law and deprived him of property from his father estate. Meyers knew he should recuse himself, but he filed an objection, which was upheld by Judge Wagner without legal jurisdiction. Therefore Meyers, in essence was a private citizen. He then conspired with Judge Wagner to deprive Thomas of his constitutional rights to a fair trail. Judge Wagner, who was an attorney in the North County Family Law Court before becoming a judge knew all the other attorneys who practiced before her. The federal common law did not provide immunity for private party’s accused of conspiring with a judge to deprive someone of their constitutional rights, the attorney defendants are not entitled to immunity under federal law.

Attorney Paul Gavin was a state actor only when he was as a acting judge pro tem and attorney in his own case at the same time. He has no jurisdiction or right to use that office to intimidate, by use of fear to gain an advantage in this case for personal gain. Gavin is not immune for his none judicial functions as an attorney.

The Ninth Circuit never addressed important issue of the R.I.C.O. violation. I am asking for permission to amend that complaint because of the changes in R.I.C.O. statutes since I filed the action. The U.S. Supreme Courts recent decision in regards to R.I.C.O., implicitly endorsed the view of the 9^th Circuit in several cases, including United States v. Tille, 729 F.2d 615. Cert. Denied, 469 U.S. 845 (1984), The convictions of conspiracy to violate R.I.C.O. were upheld without having to show a defendant committed, or agreed to commit, any act to further the conspiracy. The R.I.C.O. statute section 1962(d) "simple in formulation" provides: "it shall be unlawful for any person to conspire to violate any subsection of the R.I.C.O. Act. There is no requirement of some overt act or specific act, unlike the general conspiracy provision applicable to federal crimes, which requires that at least one of the conspirators have committed an act to effect the object of the conspiracy. The conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. The interplay between subsections (c) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not commit or agree to commit the two or more predicate acts requisite to the underlying offense."

Claim against Defendant’s Ellen Ricotta, Fred Weedon and Roy Garrett, and attorney Paul Gavin for 42 U.S.C. Section 83, and 85(2), and 85 (3), are not alleged to be government employees. They are not immune. The action should not have been dismissed. They conspired with government employees. Under 42 U.S.C. s 1983, a private individual acts under "color of law" if he or she is a willful participant in joint activity with the state or its agents. Adickes v. S.H. Kress & Co., 398 US 144 (1970). Under 42 U.S.C. S 1985(2), which proscribes conspiracies depriving persons of rights or privileges including the right to equal protection of the law. Federal Civil Rights Acts (2d Ed) ss 276-277. Under 42 U.S.C. s 1985(3),which also proscribes conspiracies depriving persons of rights or privileges including the right to equal protection of the law, and Bray V. Alexandria Women’s Helath Clinic 506 US 263, 122 (1993).

ISSUE V, Whether the district court’s dismissal of R.I.C.O. was proper because there was no threat of continuing criminal activity.

The District Court contention that there is no continuing criminal activity is ridiculous. Case DN 64053 is continuing to this day with an estimated $90,000.00 being held in two states. The San Diego Superior Court has refused to hear Thomas’ motion for remanded issues from 4^th. District. He asked th 4 th. District to order the Superior Court to hear the issue, but they never responded. The same Paul Gavin, R.I.C.O. Enterprise, is in charge of the case, with associate attorney and defendant Roy Garrett leading the case. He continues the same modis operandi as Gavin by failing to follow the rules of court. There was another hearing on October 13,1998. At that time Thomas asked for a change of venue and it was denied. He also asked that the order for disability pension be corrected before being signed because it was factually and legal wrong, but it was denied. On September. 8,1998 another hearing was continued to October 22,1998, and another hearing is set for June 25,1999. How can there could be a statue of limitations when the criminal deprivation of his civil rights is still on going. He filed an initial federal suit as far back as 1995. He had that suit dismissed without prejudice, because the County stated he had to exhaust his state remedies first and wait for the California Fourth District Appellant Court’s decisions.FACTUAL SUMMARY

Judge Maino, admitted his bias after his reading the settlement brief, prior to the first trial, but refused to recuse himself. He made my challenge to him a premptoral challenge per Gavin’s suggestion, so I could not challenge any other judge. Then Judge Maino rewrote the transcript, committing a felony, but inadvertently left in the transcript that he was hand carrying the case file to Judge Howatt, whose courtroom was in another complex. This act was not the action of a judge. It is the responsibility of the clerk or bailiff to do that job. I did hear the judges discussing my case, which violated my right to impartial trail. In Kalina v. Fletcher, supra, immunity was lost by a prosecutor for similar illegal act under 42 U.S.C. s 1983.

Judge Howatt conspired with Judge Maino to violate my constitutional rights to an impartial trial. He conducted exparte hearing which were illegal, his decision was taken to the appeals court and was overturned. He failed to uphold orders or make Gavin do the orders he said he would do. He failed to honor the party’s stipulation. He reversed an order clearly in violation of state law, and made them retroactive to three years past. When I objected, he stated as he left the bench. "Let him appeal". Which was done and it was over turned also, but the superior court refuses to address the issue and he has never received any of the money back. He violated Family Code 271, by awarding fees to Gavin in excess of Thomas’ net worth. On the record Gavin admitted having an exparte with Judge Howatt without Thomas or his attorney on numerous times.

Commissioner Gillivan went beyond the scope of her duties as a Commissioner by signing a judgment against Plaintiff based on Judge Howatt’s decision, which was signed two years earlier. Thomas had refused to have her as a judge because of her relationship with Gavin. She exceeded her jurisdiction as a Commissioner, when she signed a $50,000.00 illegal judgement that enriched Gavin by $8,322.00 more dollars that he had already collected from the sale of Thomas business. This order was wrong and there was no hearing. It was obvious that there had been number of hearings that changed the amount of this two year old judgement. The money was to come from Thomas’ half of the property when it was sold. Gavin made it against Thomas personally as a one-time support so he could not file bankruptcy. Now this illegal judgement is missing from the file. This is another felony, but it is in evidence in Thomas’ exhibit #10, in the R.I.C.O. Statement, with all filing stamps.

Judge Jones stated, that Commissioner Gillivan was performing a judicial act when she signed a judgment for attorney Gavin. Commissioner Gillivan has no defense for signing the $50,000.00 judgement, in light of Code of Civil Procedure # 635 and Local Rules 1.3(5) for North County Branch-Venue- General Rules.

The order was two years old and Commissioner Gillivan was not an "independent calendar judge", $50,000.00 is a very "substantive issue." She apparently never read the order because it was very "complex". This rule explicitly states that she had no power or authority to sign these judgements. The order was completely contrary to way the order had read and there was no hearing. The County states under C.C.P. 259, that she had the power, but C.C.P. 259 does not give her power to sign any judgement, it explicitly lays out what her power are, but nowhere does it give that power to sign judgements. The only assumption is that she had exceeded her jurisdiction and is liable. When a judge knows that they lack jurisdiction their judicial immunity is lost. Rankin v. Howard, 633 F. 2d 844.

Gavin knew she would sign it without question or a hearing even though it was two years old. Court personnel have told me how she does his bidding and assigns him to lucrative child representation cases. He runs the bill from $20,000.00 to $50,000.00 and she accepts the amounts without any evidence of time or a bill and awards him exorbitant fees.

Commissioner Gillivan does not have judicial immunity because she never signed the oath in this case, and I never gave her authority to hear this case. Therefore she is not a judge, only a "person" under the law.

Judge Wagner refused to sign this judgement, but did sign another judgement earlier, which was beyond her scope of authority. She had recused herself from all of Gavin’s case law. Judge Wagner refused to honor the stipulation between Gavin and myself, that Pro Tem Meyer’s recusal go to Judge Mason downtown, (Minute Order June 7,1994), Civil Procedure Code 170 et seq states the recusal will go to a neutral judge that both parties agree on. Judge Wagner conspired with Gavin to keep this case in front of Meyer. Judge Wagner’s recusal of herself stripped her any authority to hear any motions in this case. She failed to follow the law as to the Pro Tem Meyer’s recusal, which left Meyer on the case and he took Thomas for another $66,000.00 by overturning orders of Judge Howatt in violation of state law.

Judge Jones was wrong about Gorden Meyer being Ellen’s attorney. He was the Judge Pro Tem. In May 19,1994, during the first hearing before Meyer, Attorney Garrett’s name was mentioned. He was Gavin’s associate, also the appellate attorney for Ellen and is now her attorney of record. Meyer stated Garrett managed some property for him, but neglected to state they were in the same office and used the same secretary and were business partners. As Thomas was leaving, court personnel told him that Gavin and a group of attorneys they called the "Gang Of Five", run the family law court. The judges, by their personal relationships with these attorneys will recuse themselves. This way the attorneys can play judge for each other. Meyer re adjudicated facts already ruled on by Judge Howatt. He refused to let Thomas have an attorney represent him or stay in the court room. He gave Gavin another $20,000.00 in attorney fees against him without as much as a bill. He was over turned in appeal, but Thomas never received any money. After a hearing Thomas observed Meyer and Gavin dictating to the court reporter. When he went back into the court, they stated in their arrogance that they were just correcting the transcript. How could Judge Jones dismiss the case in District Court when doe not understand the facts of the case.

Judge Murphy ordered the c/p residence be sold for $100,000.00 below stipulated appraisal, in violation of state law. The Title Company would not insure the property because Thomas would not sign the deed. Judge Murphy told the Title Company, if they would close the escrow, he wouldgive them $10,000.00 for one year incase Thomas sued them. This $10,0000.00 was from the c/p proceeds, which they held until the statue of limitation ran out. Judge Murphy also sold c/p property in Washington State below appraisal and without Thomas’ signature.

The remanded issues were continued again for the fifth time. In three years no judge will find attorney Garrett in default. Thomas asked respectfully of Judge Murphy why he stated he was holding Thomas to the standard of an attorney, while he was in pro per, but attorney Garrett was not held to the same standard. Without cause, Judge Murphy had Thomas physically removed form the respondent’s table by the bailiff and put in the galley where he was not allowed to represent himself, nor was there any one else to represent him in the hearing. This was a lack of due process.

Judge Murphy failed to hold legal hearings, or to do legal orders. His admitted bias on the record deprived Thomas of an impartial trail. He ridiculed him for asking for his civil rights and then in other hearings asked him arrogantly what rights he was violating now. Judge Di Figlia and Judge Murphy, himself, had ordered, that all the money from the sale of the C/P residence to be put into Thomas’ ex-attorney’s trust account until the appeals were resolved, because of Gavin’s conviction by the state bar. After the money was put into the court’s account, Judge Murphy, over Thomas’ objection released all the money to Gavin and Ellen approximately $300,000.00. He gave no factual or legal basis. Judge Murphy was one of 21 judges under investigation for bribery, by the F.B.I. in the same case in which Presiding Judge Greer, Judge Malkus, and Judge Adams were convicted of violations of R.I.C.O. Judge Murphy admitted his bias in court, but refuse to rescind his illegal orders and withdraw from the case.

If these are not overt R.I.C.O. predicated criminal acts of conspiracy, fraud, theft falsification of court document and conversion, then what is? Thomas is not an attorney; but he is a Sheriff’s Deputy who knows the Penal Code and wrote crime reports. Does that make him any less of citizen and to loss his constitutional rights? Criminals like Gavin, steal more money than all the criminals in our jails that used guns.

Gavin’s orders were always made with the objective of obtaining money for himself. When Gavin took the money from Thomas’ half of the C/P bank accounts in the very first order he committed fraud. Thomas was sanctioned $14,904.30 towards petitioner's attorney fees in November 1992. Thomas figures showed an overpayment of $523.88. Gavin's figures were wrong, but Judge Howatt refuse to address the issue. The sanction itself was questionable, but the accounting for the amount of the sanction was erroneous.

Thomas was sanctioned another $75,000.00+ prior to the hearing on July 8, 1993, Thomas submitted a declaration after going over the Gavin’s attorney bills of $75,000.00.

Thomas’ audit of Gavin’s bill only came to $47,003.59. Gavin came into the hearing on July 8.1993, with petitioner’s supplemental declaration with newly figured amounts in totaling $72,766.85, this was a $3,000.00 difference. The declaration was signed by Gavin and petitioner under penalty of perjury. Gavin also admitted on the record these bills were wrong.

This new figure included bills of October 30,1992 for $13,148.10 and July 1.1993 for $1,663.10. Petitioner submitted these bills which were not previously submitted included bill past the date of requested fees of May 27, 1993. Even with the extra bills, Gavin's figures were inconsistent with petitioner's original declaration.

Gavin was allowed to represent the two adult sons over Thomas’ attorney’s objection and the court awarded them $31,500.00 of Thomas’ inheritance from his father’s estate. Thomas had the cashed checks from his mother. But Gavin stated they had to be filed 15 days not the five that he had filed it. Judge Howett ruled in violation of the law that the checks were inadmissible. Ellen had no evidence of any kind and did not know when the checks were written to the sons. Its an outrage that Thomas lost his inheritance. Plus he had to pay interest from a date that the Judge Howett picked out of the air for when the checks were written. But attorney Gavin made an illegal order that stated Thomas’ inheritance was Ellen’s separate property and not the adult children’s after adding interest of $8,100.00. Judge Howatt stated it was community property therefore she would have to pay one half. The fraud amounts to a grant total of $81,500.00 for his inheritance and Thomas had to pay Gavin’s legal fees for such criminal conversion of his inheritance.

Gavin’s alleged attorney fees were inconsistent with each other as well against the evidence. Even Ms. Guillotti, an associate of Mr. Gavin, on August 24, 1994, told Judge DiFigilia the accounting was atrocious. Judge Di Figilia ordered all proceeds from the sale of the house be put into a trust account. At the next hearing Judge Murphy upheld that decision over Gavin’s objections. A few months later, Judge Murphy reversed that order and gave Gavin and Ellen all the money. In 8 years Thomas has never received any money from his part of the estate, all were a violation of California Family Code 2550 and California Family Code 271.

This case goes to the root of the entire legal system. If those charged with

applying the law refuse to do so, there is no law, and all of the efforts of this court, other

Appellate courts and the various legislatures are rendered worthless. Something must be

done to restore the rule of law, something sufficient to deter intentional violations of

civil right.

This Court has repeatedly recognized the importance of question of judicial

immunity. Pulliam v. Allen (1984) 466 US 522, 529, 104 S.Ct. 1970, 80 L. ed.2d 565;

(1977) 435 US. 349,98 S.Ct. 1099,55 L.Ed.2d. 331. It continues to be an important

concern.

Growing public outrage over the conduct of the judiciary also raises the

Importance of the issue. Books are written on the subject, noting common injustices

arising from the immunity throughout the former British Empire, including the U.S.

Websites are dedicated to this topic. Initiative measures have been launched to bar

immunity. The American Judges Association makes immunity one of its main planks.

Thomas filed complaints about the commissioner and judge pro tems, with the

Commission on Judicial Performance and the State Bar of California and both stated

they had no jurisdiction over them. He worked with a group after two years we were

able to get State of California Proposition #221, passed in the June 1998 election. This

bought commissioners and pro tem judges, under the jurisdiction of the

Commission of Judicial Performance, because no one was policing their conduct. Even

with this mandate from the people, the Commission on Judicial Performance still refuses

to investigate commissioners and pro tem judges. The court will not correct the

injustices against pro se because pro se have no standing in the court and no constitutional

rights.

Three-failed bill in Congress have attempted to fortify judicial immunity.

Growing numbers of news articles expose the shocking misconduct of judges. Public

polls show a rapidly declining public respect for judges and for the judicial process.

The underlying rights of citizens here are important. California citizens are

citizens of United States and have Federal Constitutional Rights. There is no

mechanism in this country to make a judge follow the law, especially when you are a pro

se litigant in a civil case. The conviction of three superior court judges for criminal

R.I.C.O. was just the tip of the iceberg. There were 21 others under investigation and

two of them were judges in this case.

The particular issue in this case has not been addressed. It is whether a judge who

intentionally violates a litigant’s civil rights is entitled to immunity from civil damages.

The close case is ExParte Virginia (1879) 100 US 339, 25L.Ed 676, where a judge who

excluded Afro-Americans from a jury was criminally prosecuted. The majority in

Forrester v. Wjite (1988) 484 US 219, 108 S.Ct. 538, 98 L.Ed.2d 555 interpreted Ex Parte

Virgina as not being restricted in application because it was a criminal, not civil case.

If a judge should be criminally prosecuted for mere tampering with the content of

jury, it is a nonsequitur that he should be immune civilly for violation of Civil Rights and

simple Due Process.

This court has never explained what the" "Complete lack of jurisdiction",

entails. In California law, a court commissioner must acquire the constitutionally

mandated stipulation to jurisdiction from both parties. Rooney V. Vermont Investment

In this case a judge hand carried the case to the next judge, after he admitted being biased

by his own illegal action, of reading a seal settlement. Then pre-preadjusting the next judge

with that information and making statement in transcripts the he was going to the new judge.

The pro tem Judge was in the same office as the Gavin’s associate and Ellen’s

appellant attorney and used the same secretary, this was determine not to be a conflict of

interest and nor a reason to recuse him from the case.

A judge after recuseing herself from the case for her personal relationship with the

attorney, continued to make decisions in the case and signing orders.

A judge threatened a pro se litigant with arrest for asking if the attorney on other side had

passed the Ethics part of the bar examine which he had to take over for misuse of clients fund.

A judge does not allows a pro se litigant to speak when the court is selling his free and clear

property in two states without his authority.

The only example articulated by this court was in dicta of Bradley v. Fisher

(1872) 80 US 335 AT 352, 20 l.Ed. 626, 13 Wall 355, reiterated in Stump V. Sparkman

(1977) 435 US 349 at 357 (fn.7), 98 S.Ct. 1099, 55 L.Ed. 2d 331; The probate judge who

hears a criminal matter. Such a judge who covers for another and acts negligently but in

good faith will have no immunity. Is immunity governed by administrative assignment?

By that guideline, the commissioner who acts without the jurisdiction would seem to lack

immunity in the same way.

state interest" under Younger abstention to bar federal court 42 USC Section 1983,

Is there any relief against the state judges intentional violation of their own state’s laws?

manifest from certified transcripts and court records. These are not bare allegations of malice, nor

trivial technicalities. What happened was violation of federal law.

public benefit, has no application to intentional violations of litigants’ Civil Rights. An

"independent judiciary" should not be independent of the laws they are supposed to

apply.

Qualified Immunity has balanced the legitimate needs to protect government official

from undue lawsuits while preserving the rule of law and the public’s trust:

Harlow, supra, at 457 US 818. There is no reason in law or function why trial judges and commissioners and pro tem judges should have, or need, greater immunity then Harlow.

This court should grant certiorari because the Ninth Circuit Court of Appeals’ decision is contrary to accepted and usual course because I am in Pro Se. This case proves that a person has no standing in this country’s court unless they are represented by the fraternity of lawyers.

The Ninth Circuit declared that the District Court lacked subject matter jurisdiction, but this is a question of applying the Civil Rights Act and the 14^th Amendment, petitioning the government for a redress of grievances. This court has heard several such cases, cited above, and never suggested that the District Court lacked jurisdiction. In Pulliam v. Allen suprea, this court expressly enjoined the trial court’s conduct.

The Ninth Circuit’s conclusion arose from its misunderstanding of this action as a sort of appeal on the merits of the state case, which is still not resolved to this day. This action does not seek any review on the merits nor a different award. This action focuses solely on judicial misconduct, liability of the defendants, and prospective relief as to court's conduct. The ninth Circuit improperly affirmed the district court’s dismissal on that basis.

This case just might be the most important case in the 200+ years in the history of

the United States of America. No democracy has survived for more than 200 years in

history of human civilization. Neither has ours, and this case proves it. In 1925 attorney

Clarence Darled stated that were will have government by attorney some day and it is

Rights are violated all the way though the California State Court System and as Thomas proved

with Prop #221, if you are not part of the fraternity of attorneys or can afford them you have no

rights in this country. If you are divested of everything you own, by the system, how can you get justice. No citizen has any Constitutional Rights unless an attorney represents them and Thomas

can not find any record of a Pro Se ever arguing in the Supreme Court which proves his point.

The ‘RULE OF LAW’ has collapsed in the State of California. This case shows the dark side of the legal profession greed and self-dealing. What has occurred here is criminal violation of Civil Rights. This is occurring across our nation. Supreme Court Justice Sandra Day O’Connor state in The San Diego Union-Tribune, on May 16,1999, "that the states must make juvenile and family courts a high priority and improve the quality of legal representation for people who cannot afford their own attorney." This case proves that the State of California or any other states are not going to protect any citizen’s Constitutional Rights when there is so much profit to the attorneys who are running the system.

This case is not a state issue, but a federal issue. Thomas had an attorney until his Civil Rights were violated when the State Court deprived him of any of his estate to defend himself. When the money ran out so did Thomas’ attorney. Then this perverted system made him pay Ellen’s legal fees of over $100,000.00, in violation of all state law when Thomas could not afford an attorney for himself. This court must put a stop to the demise of the "RULE OF LAW, or it surely will bring America itself down.

Our civil court system has evolved in to industry of self serving and self dealing

or the enrichment of the attorney. The system has been so perverted, that in 1975 Webster

dictionary rewrote the meaning of the word justice to include; what is lawful. Justice

does not mean truth, quality of being just; impartial, conforming to right; equitable,

and honesty anymore, but what ever the perverted law can justify. Now lawful equals justice.

The very survival of this country depends on the people believing in the

Constitution, and today the vast majority of American does not trust our courts or our

government.

U. S. Supreme Court Justice Brandies stated in Olmstead v. United States, 277 U.S. 438 (1928):

Thomas thought the revolution would come from his generation of people who, like him,

volunteered for Vietnam, but after the Oklahoma bombing and the shooting in Denver, may be

not. After all they are the mirror of what their parents and peers think of the state of this country.

The attorneys in robes sit in their Ivory Towers and never know what is going on in the streets.

They should have to put a Badge on and go out on the street to use the law. But then they would

be liable for their actions like Thomas was. There is an upheaval of unrest about of legal system.

American Society has observed the formation of a new scheme to administer a perverted system to deal with family law cases. It has been devised within the vacuum of the federal courts. For the past twenty years this vacuum has formed within the over-burdened court. It failed to address the issue in hopes that it will go away. The Court has virtually removed themselves as the protectors of individual rights pertaining to the family. Any uncontrolled system takes great profit from injustices which an adversarial system can provide when it is unprotected by the federal courts.

The architects of this scheme are those who profit greatest from the infliction of cruelty, torment and destruction of lives. They are the state judicial appointees, lawyers, a huge bureaucratic establishment that receive power and funding through the destruction of the families via the depravation of inherent, inalienable and constitutionally guaranteed rights. It is more than a system of petty tyrants; it is an industry dedicated to profiteering at the experience of the American family. A network of institutions, legislation, regulation, and practices has been established a network of courts, the only person that can get justice are the people that can afford to buy it. The network does this without regard to the damage inflicted upon children, parents, families, business, and society in general, and individual rights. It lends itself to be perverted by those who have created an industry out of it. An industry that puts a selfish interests before law or morality. This industry is manipulated by attorneys that are preoccupied with accumulating of wealth, to the utter neglect of their public and ethical responsibilities. This industry improperly operates and determines the lives of innocent people. It is an industry that produce no product, but hatred and despair. It is a parasite that is killing this great country.

What is the purpose of having a Constitution, when the Courts fail to follow the law and are above the law. The United States Constitution no longer is applicable in the maze of attorney written perverted case law. When enough Americans, have had their rights violated there surely will be anarchy.

WHEREFORE, Petitioner prays that his petition for certiorari be read and be granted.

Respectfully submitted,

Dated, June 15,1999