Advocate Erin Baldwin Calls on USDC Chief Judge George H. King to Right the Wrongs of His Predecessor, Federal Judge Audrey Collins
November 2, 2012 § Leave a comment
Journalist Erin Baldwin calls on new Central District Court of California Chief Judge George King to right the wrongs of Former-Chief Judge Audrey Collins and District Court Judge Dolly M. Gee … see: Former Chief Judge Audrey Collins Violated Federal Law
In the same filing she calls on United States Attorney General Office for the Central District Court of California, Andre Birotte to begin a Federal Grand Jury Investigation into fraud Baldwin has exposed … see: Former Chief Judge Audrey Collins Violated Federal Law
In the same filing Baldwin calls on Ninth Circuit Court of Appeals Chief Judge Alex Kozinski to right to wrong in appeals prejudiced by Judge Dolly Gee and other judicial officers of the Central District Court of California … see: Former Chief Judge Audrey Collins Violated Federal Law
What the U.S. Supreme Court is Learning About the Ninth Circuit From Erin Baldwin’s Petition for Writ of Certiorari – Appendix of Documents
May 19, 2012 § 1 Comment
March 12, 2012 § Leave a comment
CASE No.: 12-55087
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIN K. BALDWIN,
UNITED STATES DISTRICT COURT,
FOR THE CENTRAL DISTRICT OF CALIFORNIA,
and FRANZ E. MILLER, Interested Party.
APPEAL FROM THE U.S. DISTRICT COURT,
CENTRAL DISTRICT OF CALIFORNIA
CIVIL CASE No. 5:11-EDCV-01300
PETITION FOR REHEARING WITH
SUGGESTION FOR REHEARING EN BANC
Pursuant To Federal Rules Of Appellate Procedure 35 And 40
Re February 16, 2012 Order of this Court by
Motions Panel Circuit Judges Schroeder, Leavy and Clifton
Erin K. Baldwin, Plaintiff-Appellant, In Propria Persona
Post Office Box 3141
Beaumont, California 92223
COMES PLAINTIFF-APPELLANT, ERIN K. BALDWIN (“Baldwin”), In Propria Persona, to present this Petition for Rehearing with request for Rehearing En Banc in connection with the February 16, 2012 Order of this Court by Motions Panel Circuit Judges Schroeder, Leavy and Clifton (“Subject Order”).
1. Baldwin asserts that the February 16, 2012 “panel decision” conflicts, both procedurally, and substantively, with decisions of this Court and the United States Supreme Court, therefore, consideration by the full court is necessary.
2. Baldwin also asserts that the Subject Order was not made by Motions Panel Circuit Judges Schroeder, Leavy and Clifton, as represented. Rather, the Subject Order is an invention and fabrication of U.S. Ninth Circuit Court of Appeals Appellate Commissioner, Peter L. Shaw; Senior Staff Attorney, Ed Schiffer; Supervising Staff Attorney, Susan Gelmis; and Motions Attorney, Monica Fernandez. Baldwin requests an immediate and full investigation into this matter.
INTRODUCTION AND BACKGROUND
3. The Subject Order states:
“A review of the record demonstrates that this court lacks jurisdiction over this appeal because the order challenged in the appeal is not final or appealable. See 28 U.S.C. §1291; Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981) (order is not appealable unless it disposes of all claims as to all parties).” “Consequently, this appeal is dismissed for lack of jurisdiction. All pending motions are denied as moot. No motions for reconsideration, rehearing, clarification, stay of the mandate, or any other submissions shall be filed or entertained in this closed docket.”
4. As a preliminary matter, Baldwin wishes to address the final sentence in the Subject Order, i.e., “No motions for reconsideration, rehearing, clarification, stay of the mandate, or any other submissions shall be filed or entertained in this closed docket.” In accordance with Federal Rules of Appellate Procedure, Rules 35 and 40, Baldwin has the right to file a petition requesting rehearing. “Appellate jurisdiction can be challenged at any time, and objections to jurisdiction cannot be waived,”  and the “Merits Panel has an independent duty to determine appellate jurisdiction, even where the Motions Panel has denied same.” 
5. In fact, the Ninth Circuit makes this right clear on Page 3 of its literature entitled, “After Opening a Case – Pro Se Appeals”: “In some cases, the judges may decide a case before the completion of briefing, but you will first be given an opportunity to tell the Court why the case should not be summarily decided. 9th Cir. R. 3-6.”
6. This Court’s policy of issuing an Order to Show Cause why the appeal should not be dismissed prior to dismissing an appeal is well-established. However, Baldwin was deprived of this measure and as such, was deprived of her Fourteenth Amendment rights to equal protection of the law, right to access the courts and due process of law. 
7. Baldwin also asserts that the action of dismissing Baldwin’s appeal without issuing an Order to Show Cause is discriminatory and an abuse of discretion with the intent to adversely prejudice the advancement of an unrepresented, indigent appellant’s issues on appeal. The U.S. Supreme Court has held that both due process and equal protection concerns are implicated by restrictions on an indigents’ exercise of the right of appeal. 
8. In order to avoid the aforesaid implications as well as the confirmation that this Court has jurisdiction over Baldwin’s appeal, this Court has refused and continues to refuse to rule on Baldwin’s In Forma Pauperis (“IFP”) application transferred to this Court from the District Court nearly two months ago, on January 13, 2012. Ten days after the district court was divested of jurisdiction over Baldwin’s IFP application, U.S. District Court Judge Dolly M. Gee (“Judge Gee”) attempted to deny Baldwin’s IFP application claiming that it was not taken in good faith, was frivolous and without merit. Clearly, Judge Gee’s denial is void for lack of jurisdiction and disposition of Baldwin’s IFP application is still pending with this Court.
9. Public policy favoring disposition of cases on their merits counsels strongly against dismissal. The Ninth Circuit, in Eldridge v. Block,  held: “This policy favoring resolution on the merits ‘is particularly important in civil rights cases.'”
10. This Court summarily dismissed Baldwin’s appeal without searching for the “availability of less drastic sanctions,” without warning Baldwin of the chance of dismissal, and without allowing Baldwin the opportunity to show cause why her appeal should not be dismissed. “Nothing in the record demonstrates that Baldwin was on notice that the case would be dismissed.” 
11. If it is this Court’s policy to refrain from “considering matters not specifically and distinctly raised and argued in the opening brief, nor arguments and allegations raised for the first time on appeal,”  dismissing Baldwin’s appeal without allowing her to file an opening brief is unconscionable and unconstitutional. In fact, the necessity of an opening brief and a responsive brief is stated in this Court’s policies and procedures: “After briefing has been completed, the case management attorneys review the briefs and record in each case, in order to identify the primary issues raised in the case, and to assign a numerical weight to the case, reflecting the relative amount of judge time that likely will have to be spent on the matter.”
12. The Subject Order also ignores the fact that this appeal is related  to Case Nos. 11-57210, 12-55081, and 12-70296 pursuant to Federal Rules of Appellate Procedure (“FRAP”), Rule 28.2.6. All of Baldwin’s appeals arise from the same district court proceeding, involve closely related issues, and are successively filed to demonstrate an ongoing pattern of retaliation and viewpoint discrimination against Baldwin in violation of her First Amendment rights. The Ninth Circuit in RK Ventures, Inc. v. City of Seattle,  astutely recognizes the “Continuing Violations Doctrine,” its applicability to Section 1983 claims, and this Court’s jurisdiction over First Amendment and Equal Protection issues raised by Baldwin in her appeal:
“We nonetheless hold that appellants have standing under §1983 to pursue their First Amendment and equal protection claims in their own right. We conclude that appellants have created a triable issue of a constitutional violation under both the Equal Protection Clause and the First Amendment. With respect to the equal protection claim, appellants raise a genuine issue of dissimilar treatment.”
13. Had this Court made a constitutional inquiry prior to dismissing Baldwin’s appeal as set forth in the U.S. Supreme Court holdings in Saucier v. Katz  and Pearson v. Callahan,  it would have correctly assessed Baldwin’s right to appeal on constitutional grounds. These grounds have been adequately pled in Baldwin’s papers before this Court and, in fact, is the subject of an Emergency Petition for First Amendment Writ brought before this Court on January 26, 2009 in Case No. 12-70296 and also improperly dismissed on February 15, 2012. 
14. These constitutional grounds rest on the existence of two permanent injunctions issued against Baldwin that represent unconstitutional prior restraints of Baldwin’s protected speech and freedom of the press. These facts were brought to federal court on August 16, 2011 in a Section 1983 Complaint and constitute an ongoing federal controversy and a deliberate case of viewpoint discrimination. Due to the fact that these injunctions were underwritten by the State Bar of California, inter alia, and the State Bar of California is intimately involved in the selection of state and federal judicial officers, Baldwin’s constitutionally-protected right to petition for a redress of grievances has been severely handicapped. In fact, the district court and now, this Court, has done everything in its power to dismiss Baldwin’s claims. The Subject Order is no exception.
15. This Court dismissed Baldwin’s appeal alleging it had:
a. reviewed “the record” pertaining to Baldwin’s appeal. However, the Subject Order fails to state the standard of review this Court used, fails to acknowledge that “the record” is void a showing from adverse parties, and fails to acknowledge that Baldwin was not given warning of a potential dismissal and/or given the opportunity to show cause why the appeal should not be dismissed.
b. determined it could not hear Baldwin’s appeal because the order forming the basis of Baldwin’s appeal “is not final” because “it does not dispose of all claims as to all parties.” However, the Subject Order fails to acknowledge that this appeal is based on constitutional grounds, related to other appeals pursuant to FRAP Rule 28.2.6, and must be heard as an interlocutory order to avoid irreparable harm.
c. correctly ruled on Baldwin’s dismissal based on a 31-year old case Chacon v. Babcock.  However, the Subject Order fails to acknowledge that Chacon is the authority to dismiss an appeal based on partial summary judgment of claims not certified by Rule 54(b) and is entirely irrelevant to Baldwin’s case; that Chacon is a case improperly used in boilerplate dismissal orders by Ninth Circuit motions attorneys in pro se appeals.
16. The Ninth Circuit in, Payne v. Borg,  held: “The relevant standards of review are critical to the outcome of this case” and in Walsh v. Centeio,  “The outcome of the instant case turns on the standard of review.” If this Court had, in fact, properly reviewed the record, it could not have dismissed Baldwin’s appeal. This is evidenced by material facts contained in Baldwin’s Notice of Related Appeal that support the fact that the District Court:
a. Intentionally acted without jurisdiction. The Ninth Circuit has held: “Although the district court retains jurisdiction ‘to make orders appropriate to preserve the status quo,’ it may not ‘adjudicate substantial rights directly involved in the appeal.'” 
b. Deliberately altered the record on appeal to prejudice Baldwin’s claims and to conceal their own misconduct: The Ninth Circuit has held: “The appellate court is entitled to review a fixed, rather than mobile record.” 
c. Entirely avoided the required constitutional inquiry. 
d. Committed criminal obstruction of justice by advancing false facts in written and published orders made available to the public that they knew were false in order to discredit Baldwin personally thereby harming Baldwin’s appeal and her Section 1983 claims. 
17. If this Court used the de novo review standard it would have been required to disregard the district court’s position entirely and look “anew” at the issues contained in Baldwin’s Notice of Related Appeal “as if no decision previously had been rendered.”  As such, it would have required this Court to make an independent constitutional inquiry,  evaluate whether the federal rules of civil procedure were properly interpreted,  decide whether the facts of Baldwin’s case satisfy the legal rules,  and/or whether clear error was present on the part of the District Court.  None of these decisions were made prior to dismissing Baldwin’s appeal. Had they been, dismissal would not have been warranted.
18. If this Court used the clearly erroneous review standard Baldwin’s appeal would not have been dismissed because under this standard, “findings of fact are made on the basis of evidentiary hearings and usually involve credibility determinations.”  Since an “entire record” does not exist, namely any showing from adverse parties, said showing would necessarily be required prior to determination of a clearly erroneous decision. The dismissal of Baldwin’s appeals prior to briefing gives rise to Baldwin’s argument for viewpoint discrimination. This is particularly evident given Baldwin’s arguments that district court judges acted without jurisdiction to alter the record on appeal with alleged “findings of fact” that attacked Baldwin’s credibility in order to conceal their own misconduct and to prejudice Baldwin’s Section 1983 claims and issues of appeal. (See, fn. 20, supra.)
19. If this Court had used the abuse of discretion review standard it would have had to review Baldwin’s issues on appeal for “plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”  Baldwin’s appeal could not have been dismissed under this review standard because “the district court did not apply the correct law and rested its decisions on clearly erroneous findings of material fact.”  It is without a doubt that the “district court ruled in an irrational manner.”  The district court also “made errors of law,”  “abused its discretion by erroneously interpreting a law,”  “rested its decision on an inaccurate view of the law,  and as stated, supra, the “record contains no evidence to support the district court’s decision.” 
20. Title 28 U.S.C. §1291 states: “The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts ….” In Cunningham v. Hamilton County, Ohio,  The U.S. Supreme Court interpreted this rule to mean that “an appeal ordinarily will not lie until after final judgment has been entered in a case” and that “a decision is not final, ordinarily, unless it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” The use of the word “ordinarily” implies that there are exceptions to this rule, and these exceptions apply in Baldwin’s appeal.
21. Since the rule in 28 U.S.C. Sec.1291 is very broad, the courts look to the Federal Rules of Civil Procedure (“FRCP”) to narrow the rule in certain circumstances. For example, FRCP Rule 54(b) sets forth the final judgment rule in multi-claim and multiparty cases. Under that rule, the court may “direct entry of a final judgment” on fewer than all the claims or as to fewer than all the parties “if the court expressly determines that there is no just reason for delay.” Said express determination must be so stated in the order with facts to support same. The Subject Order is absent said determination and this rule speaks to the disposition of claims, rather than of legal theories or requests for relief. 
22. Although Baldwin’s case is a multi-claim and multiparty case, Baldwin’s appeal does not propose a review of partial summary judgment of claims and therefore, a Rule 54(b) certification is not required. As stated in Title 28 U.S.C. §2072:
“The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.”
23. The U.S. Supreme Court in Cohen v. Beneficial Industrial Loan Corp.,  determined three distinct factors which inform the classification of a district court order as a “final decision” for purposes of §1291. Such an order must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.”  As stated, supra, Baldwin’s appeals have been successively filed and related to each other by a common underlying issue, namely, the existence of two permanent injunctions that not only deprive Baldwin of her First Amendment rights but also drive the balance of her Section 1983 claims.
24. Without a federal court determination of the validity of these injunctions, Baldwin’s Section 1983 claims will be repeatedly attacked without legal merit and solely for the purpose of side-stepping the inevitable court order that will correctly deem the injunctions not only unconstitutional but responsible for three years of heinous retaliatory and malicious prosecution against Baldwin including gross violation of Baldwin’s liberty and property interests.
25. This Court and the district court and everyone involved knows these injunctions are unconstitutional but no one wants to be the one that steps up to the plate and declares it in a court order. The ramifications are staggering but must be implemented. The longer this is dragged out, the more serious the ramifications become.
26. The Cohen test set forth supra is on point here. The common issue of the permanent injunctions and the “pink elephant” issue of the validity of same would be well-served by applying said test. By ruling on the validity of the injunctions now:
a. the disputed question underlying the totality of Baldwin’s Section 1983 claims would be conclusively determined; and
b. an important issue (whether the injunctions are valid) would be resolved allowing the balance of Baldwin’s Section 1983 claims to be clearly and effectively litigated.
27. Reserving the determination of the validity of the permanent injunctions until final judgment would be ludicrous because without said determination, a final judgment cannot be entered. There is no rational or logical reason to pass on this decision until final judgment and the fair and equitable outcome of Baldwin’s Section 1983 depends on it. It would be akin to baking a lemon meringue pie and deciding to add the meringue after the pie has been consumed. It doesn’t make sense because a lemon meringue pie without the meringue is not a lemon meringue pie. And it never will be regardless of the manipulative maneuvers of the chef.
28. Since the “record on appeal” only consists of the January 4, 2012 Order of Judge Carter and Baldwin’s Notice of Appeal, it is incomprehensible how this Court could justify dismissing Baldwin’s appeal. There is no (a) showing by adverse parties; (b) constitutional question inquiry; (c) evidence, hearings or briefs; (d) request for Baldwin’s brief on an Order to Show Cause; nor (e) request for response from adverse parties. If the issues on appeal have not been acknowledged by this Court, how can this Court determine whether it has jurisdiction over these issues?
29. The Ninth Circuit in Warren v. Commissioner, Internal Revenue Service  held:
“The purpose of requesting briefing is to obtain more information in order to make a more informed and reasoned decision about whether to address an issue and, if so, how the issue should be resolved. Information, speech, and truth do not hurt; they only shed light. That is a fundamental tenet not only of our judicial system but of our democracy. It is possible, however, that in some instances those who do not want to allow speech — or briefs — have a preordained view of important issues and may, for some reason, not want to discover or even acknowledge what the law or the Constitution requires.”
30. The Order upon which Baldwin’s appeal is based states: ‘Before the Court are two presently pending motions in the above-captioned case: (a) an Amended Request for Leave to Amend the Corrected Second Amended Complaint filed by Plaintiff Erin K. Baldwin (Plaintiff) (Docket 25) and (b) a Motion to Dismiss filed by Defendant Franz E. Miller (Docket 26).
31. The Ninth Circuit in Scott v. Eversole Mortuary,  held: “Where the district court expressly denies leave to amend, the order is final and appealable.” Judge Carter had already denied Baldwin’s request for leave to amend her Complaint in his December 2, 2011 Order. However, in her January 19, 2012 Order, Judge Gee misrepresents that Baldwin’s request to file her third amended complaint is not appealable and that the district court will retain jurisdiction, until the appeal is resolved:
“Although it is clear that the Ninth Circuit lacks jurisdiction over Plaintiff’s appeal, see, e.g., Skoog v. County of Clackamas, 469 F.3d 1221, 1228-29 (9th Cir. 2006) (finding no appellate jurisdiction over interlocutory appeal from denial of leave to file fourth amended complaint), and a district court need not refrain from deciding a matter on appeal where it is clear that appellate jurisdiction is lacking, see United States v. Hickey, 580 F.3d 922, 928 (9th Cir. 2009) (Filing an appeal from an unappealable decision does not divest the district court of jurisdiction) (citing Estate of Conners v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993), the Court declines to proceed in this instance. Accordingly, Plaintiff’s amended request for leave to amend is hereby STAYED until the Ninth Circuit resolves her appeal.”
32. The Subject Order is absent acknowledgment that the district court had been divested of jurisdiction “over orders and judgments encompassed by the notice to the Court of Appeals” on December 19, 2009, and as such, Judge Gee’s Orders and Judge Carter’s Orders are void for lack of jurisdiction.
33. Judge Carter disregarded the current status of the case and intentionally altered the record on appeal to conceal his misconduct, i.e., failing to recuse himself from Baldwin’s case when he was well aware that conditions existed that required him to do so.
34. Carter’s Order continues: “These motions have not yet been ruled upon because shortly after these motions were filed, Plaintiff filed a Motion to Disqualify Judge David O. Carter (Docket 27). Judge Josephine Tucker denied the Motion to Disqualify on December 21, 2011 (Docket 31).”
35. Here, Judge Carter intentionally misrepresents the facts to conceal his own misconduct. Baldwin filed her Amended Request on December 6, 2011 and her Motion to Disqualify on December 13, 2011. A full week is ample time to rule on an amended request.
36. The truth is that Judge Carter did not want to rule on the Amended Request because in so doing he would have been required to make a constitutional inquiry leading to the inevitable order that the permanent injunctions entered against Baldwin were unconstitutional. This ruling would have also implicated his friend and colleague, U.S. District Court Judge Cormac J. Carney, who remanded Baldwin’s cases back to state court in June of 2011, without first making the required constitutional inquiry.
37. Second, Defendant Miller’s Motion to Dismiss had no bearing whatsoever on Judge Carter’s Motion to Disqualify because the briefing schedule on the Motion to Dismiss extended any ruling on same at least two months out. Besides, Judge Carter knew he could not rule on Defendant Millers’ Motion to Dismiss without first granting Baldwin’s Motion for Leave to Amend which he had already denied and that denial made the matter directly appealable despite the intentionally erroneous January 18, 2012 Order by Judge Gee, supra.
38. The Order made by Judge Carter on January 4, 2012 continues: “Plaintiff alleges in her Motion to Disqualify that this Court has committed egregious acts of judicial misconduct and took actions to jeopardize Plaintiff’s case. Plaintiff goes on to argue that she was denied the right to withhold consent to a magistrate judge hearing her case by this Court in its October 11, 2011 Order. Motion to Disqualify, 26.
39. Baldwin was “denied the right to withhold consent to a magistrate judge hearing her case.” Judge Carter’s October 11, 2011 Order states: “Second, as Judge Pym explained, the consent of parties is not required when pretrial proceedings are referred to a magistrate judge in accordance with 28 U.S.C. §636(b). If Plaintiff wishes to make a formal motion for Judge Pym’s disqualification, Plaintiff must file a formal motion titled as such. Otherwise, Magistrate Judge Pym will remain assigned to the case for all pretrial proceedings, to the extent permitted by 28 U.S.C. §636(b).”
40. General Order 05-07, entitled, “Reference to a Magistrate Judge,” makes it clear that reference to a magistrate judge is not limited to “pretrial proceedings.” The only way Baldwin’s entire case would not be heard by a magistrate judge would be:
“If a pro se civil rights plaintiff secures counsel or all the civil rights claims are dismissed without leave to amend, then the reference under this General Order shall be vacated automatically by the Clerk of the Court, and the case shall be returned to the assigned District Judge with the assigned Magistrate Judge redesignated as the discovery Magistrate Judge.”
41. Baldwin was never given the right to withhold consent to a magistrate judge and neither is any other pro se Section 1983 plaintiff. Baldwin opposed reference to a magistrate on August 23, 2011 but said Opposition was never acknowledged nor ruled upon by the district court even though the Ninth Circuit has held: “Parties must object to reference to a magistrate or special master ‘at the time the reference is made or within a reasonable time thereafter.'” 
42. Baldwin asserts that the district court knew Judge Carter had not issued a special designation granting Judge Pym the authority to rule on dispositive motions. “A magistrate judge lacks authority to enter a final judgment absent special designation by the district court.  However, they also knew that if Judge Pym was successful in entering an Order granting Judge Miller’s Motion to Dismiss that there was nothing Baldwin could do about it. “A final judgment entered by a magistrate judge who lacks authority is not an appealable order.” 
43. The Order made by Judge Carter on January 4, 2012 continues: “These allegations, along with Judge Tucker’s recognition of Plaintiff’s apparent pattern to name as a defendant any and every judge who issues an unfavorable ruling against her suggests that if this Court is not yet a defendant in the above-captioned case, it soon will be. Order on Motion to Disqualify, 6. Accordingly, out of an abundance of caution, this Court chooses to voluntarily recuse itself at the present time.
44. Judge Carter had no evidence to support these facts and wrote them with knowledge that they were false in order to prejudice Baldwin’s appeal and Section 1983 constitutional claims, a direct violation of Title 18 U.S.C.A. §1503 (see, fn. 20, supra).
45. Even though Judge Carter recused himself on January 4, 2012 and said order formed the basis of this appeal, said appeal has less to do with Judge Carter’s recusal and much more to do with the fact that Judge Carter:
a. intentionally altered the record on appeal without jurisdiction to do so;
b. deliberately prejudiced Baldwin’s Section 1983 claims and appeal by making false statements about Baldwin in violation of Title 18 U.S.C.A. §1503;
c. participated in the concealment of the validity of two permanent injunctions to protect defendants named in Baldwin’s complaint; and
d. by so doing, violated Baldwin’s constitutional rights.
46. This Court has deprived Baldwin of due process and equal protection of the law, and meaningful access of the courts, by denying her the safeguards afforded other plaintiffs, i.e., warning of dismissal and the opportunity to show cause why her appeal should not be dismissed.
Dated: March 6, 2012
Erin K. Baldwin, Appellant Pro Se
 Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir. 1986).
 Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1074 n.1 (9th Cir. 2004); Fontana Empire Ctr., LLC v. City of Fontana, 307 F.3d 987, 990 n.1 (9th Cir. 2002).
 Holt v. Commonwealth of Virginia, 381 U.S. 131 (1965), inter alia.
 Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956); Douglas v. California, 372 U.S. 353, 361 (1963).
 832 F.2d 1132, 1137 (9th Cir.1987)
 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).
 Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir.1992).
 Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
 However, not yet consolidated for briefing purposes.
 307 F.3d 1045, 1061 (9th Cir. 2002).
 533 U.S. 194 (2001).
 555 U.S. 223 (2009).
 Petition for Rehearing was filed in Case No. 12-70296 on February 22, 2012 and is currently pending before this Court.
 640 F.2d 221, 222 (9th Cir. 1981).
 982 F.2d 335, 338 (9th Cir. 1992).
 692 F.2d 1239, 1241 (9th Cir. 1982).
 McClatchy Newspapers v. Cent. Valley Typographical Union, 686 F.2d 731, 734-35 (9th Cir. 1982)
 Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730 (9th Cir. 1988).
 Saucier v. Katz, 533 U.S. 194 (2001) and Pearson v. Callahan, 555 U.S. 223 (2009).
 Title 18 U.S.C.A. §1503: “rendering false testimony, including the propagating, publishing and dissemination of false facts, theories and conclusions as well as the intent to retaliate against witnesses, victims, or parties for their participation in federal investigations or legal proceedings, including intimidation, physical force, threats, misleading conduct, and harassment.”
 Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006).
 United States v. Bolanos-Hernandez, 492 F.3d 1140, 1141 (9th Cir. 2007).
 United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1159 n.4 (9th Cir. 2004)
 Pullman‑Standard v. Swint, 456 U.S. 273, 289 n.19 (1982); Suzy’s Zoo v. Commissioner, 273 F.3d 875, 878 (9th Cir. 2001).
 Harper v. City of Los Angeles, 533 F.3d 1010, 1027 n.13 (9th Cir. 2008); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 783 (9th Cir. 2000), aff’d, 535 U.S. 302 (2002).
 Rand v. Rowland, 154 F.3d 952, 957 n.4 (9th Cir. 1998) (en banc).
 Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 977 (9th Cir. 2003)
 Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).
 Chang v. United States, 327 F.3d 911, 925 (9th Cir. 2003).
 Koon v. United States, 518 U.S. 81, 100 (1996); Forest Grove School Dist. v. T.A., 523 F.3d 1078, 1085 (9th Cir. 2008); United States v. Martin, 278 F.3d 988, 1001 (9th Cir. 2002).
 United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289 (9th Cir. 1994).
 Richard S. v. Dept. of Developmental Servs., 317 F.3d 1080, 1085-86 (9th Cir. 2003).
 Oregon Natural Res. Council v. Marsh, 52 F.3d 1485, 1492 (9th Cir. 1995).
 527 U.S. 198, 203 (1999).
 Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-43 (1976).
 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).
 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528.
 282 F.3d 1119 (9th Cir.2002).
 522 F.2d 1110, 1112 (9th Cir. 1975).
 Spaulding v. Univ. of Wash., 740 F.2d 686, 695 (9th Cir. 1984); Burlington N. R.R. Co. v. Dept. of Revenue, 934 F.2d 1064, 1069-70 (9th Cir. 1991).
 Tripati v. Rison, 847 F.2d 548, 548-49 (9th Cir. 1988); Alaniz v. California Processors, Inc., 690 F.2d 717, 720 (9th Cir. 1982); Kamakana v. City and County of Honolulu, 447 F. 3d 1172, 1178 n.2 (9th Cir. 2006).
 Tripati v. Rison, 847 F.2d 548, 548-49 (9th Cir. 1988) (per curiam).
March 8, 2012 § Leave a comment
Also, see … Ninth Circuit Court of Appeals Denies Pro Se Appellants Due Process of Law: https://cacorruptionwatch.wordpress.com/2012/03/07/ninth-circuit-court-of-appeals-denies-pro-se-appellants-due-process-of-law/ Please read the Petition for Rehearing for vital pro se information.
Ninth Circuit Case: Bone v. City of Los Angeles Demonstrates Pro Se Discrimination
This case demonstrates the unfair advantage attorneys for the government and judges will take against pro se Section 1983 litigants. The original Complaint in this case was filed by an attorney – so Mr. Bone was allowed to present his case before a Article III Judge. Something happened and that attorney left the case, leaving Mr. Bone to prepare his First Amended Complaint pro se. Like rabid dogs the City of Los Angeles saw their opportunity to take advantage of Mr. Bone’s pro se status.
Nine days after Mr. Bone filed his Pro Se First Amended Complaint (“FAC”), the City of Los Angeles filed a Motion to Dismiss the Pro Se Complaint. On the same day Mr. Bone found a new attorney and this new attorney responded to the Motion to Dismiss and asked for leave to file a Second Amended Complaint (“SAC”).
The judge also took advantage of the situation, denied oral argument, took the Motion to Dismiss under submission. The judge granted the Motion to Dismiss and denied Mr. Bone the right to file a SAC saying “it would be futile.” That judge failed utterly to look at the facts of the case and decide it on the merits. The Motion to Dismiss was granted on grounds that Mr. Bone was outside the statute of limitation when, in fact, he was not due to tolling case law.
Kudos to U.S. Court of Appeals Circuit Judges Fletcher and Rawlinson for coming to the aid of Mr. Bone and setting the record straight. The Opinion is set forth below.
QUESTION: Would the case have turned out differently if Mr. Bone did not have a new attorney step in at the right time? Would this Opinion have been written if Mr. Bone appeared pro se? NO WAY. See, Miss Baldwin’s Petition for Rehearing for the reasons why: PETITION FOR REHEARING
BONE v. CITY OF LOS ANGELES
RODERICK V. BONE, Plaintiff-Appellant,
CITY OF LOS ANGELES, a MUNICIPAL CORPORATION; JOHN KELLY,
an individual; and JOHN DOES 1-9, inclusive, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 16, 2011 Pasadena, California.
Filed: March 7, 2012.
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior District Judge.**
Roderick V. Bone, an African-American, filed a civil rights action pursuant to 42 U.S.C. § 1983, asserting claims for denial of equal protection under the law, violation of procedural due process and conspiracy, in addition to several state law claims.
The district court determined that Bone’s section 1983 claims were barred by the applicable statute of limitations, and granted the motion to dismiss. We reverse and remand.
* * *
Bone’s initial complaint was apparently prepared with the assistance of counsel.
His first amended complaint, which asserted five causes of action against the City of Los Angeles (“the City”) and John Kelly, an inspector for the City’s Department of Building and Safety, was prepared pro se.
Nine days after the first amended complaint was filed, new counsel filed a request for appointment to represent Bone. That request was granted the same day that the City and Kelly filed a motion to dismiss the first amended complaint.
A hearing on the motion to dismiss was set for March 1, 2010. Now aided by counsel, Bone on February 8, 2010, filed a response to the motion to dismiss and an application to file a second amended complaint.
On February 24, 2010, the district court announced that the oral argument on the Defendants’ motion was canceled and the matter would be taken under submission. Two days later, the motion to dismiss the pro se first amended complaint was granted and Bone’s application to file a second amended complaint was denied as futile.
A district court’s order granting a motion to dismiss under Rule 12(b)(6) is subject to de novo review. See Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Although “detailed factual allegations” are not required under Rule 8, a complaint must include more than a “formulaic recitation of the elements of a cause of action.” See id. (citation omitted).
Dismissal is appropriate only if “it appears beyond doubt” that the nonmoving party “can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotation marks and citation omitted). The complaint must include sufficient factual allegations which, when accepted as true, “state a claim to relief that is plausible on its face.” Id. In other words, the court must be able to reasonably infer that the defendant is liable. See id.
A district court’s order denying leave to amend a complaint is reviewed for abuse of discretion. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). Although Rule 15(a) requires that leave be freely given when justice so requires, leave to amend may be denied if amendment of the complaint would be futile. See id.
Because section 1983 does not contain its own limitations period, federal courts borrow the statute of limitations for personal injury claims in the forum state. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). In California, the statute of limitations for personal injury claims is two years. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).
However, courts “borrow no more than necessary” when borrowing a state statute of limitations for a federal cause of action. See TwoRivers, 174 F.3d at 991. Accordingly, it is federal law, not state law, which determines when a civil rights action accrues. See id. The relevant inquiry in determining accrual is “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Id.
In actions like this, when federal courts borrow a state limitations period, the court also borrows the forum state’s tolling rules. See id. at 992. California has the “discovery rule” of tolling, “which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” Fox v. Ethicaon Endo-Surgery, Inc., 35 Cal.4th 797, 807 (2005).
“A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements.” Id. (internal quotation marks and citation omitted). “[S]uspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” Id. California courts do not take a “hypertechnical approach” to interpreting the term “elements”—rather, a court examines whether a plaintiff has “reason to at least suspect that a type of wrongdoing has injured” him. Id.
This is a close case. At first glance, it appears that the district court correctly determined the claims were barred by the statute of limitations and amendment of the complaint would be futile. However, Bone alleges his suspicion that he was being treated wrongfully by Kelly did not ripen into constructive knowledge of a potential section 1983 action until July of 2009, which is well within the limitations period.
Bone claims it was then that he drove by his former property and noticed a for sale sign, and that the code violations that Kelly had required him to address remained noncompliant. Bone now seeks to allege that many of the neighboring properties were constructed in the 1940s and were not required to comply with the same modern building codes. If the district court had permitted oral argument on the motion to dismiss the pro se first amended complaint, counsel may well have told the district court that comparison with the treatment of the other houses in the neighborhood did not reveal racial prejudice by Kelly because those houses did not need permits, and their noncompliant conditions were grandfathered.
Until Bone drove by his former property in July of 2009, he might have had no reason to suspect that he was a victim of discrimination. Instead, he could have believed he was simply dealing with a very strict city inspector. Assuming the truth of the allegations Bone now seeks to make, we conclude that Bone has asserted a section 1983 claim that is plausible. Therefore, we are unable to conclude that amendment of the first amended complaint would have been futile.
It appears that the pro se first amended complaint was prepared during a very brief period between the withdrawal of initial counsel and appointment of second counsel. Given all of these circumstances, we believe that Bone should be allowed to amend his complaint and pursue his claims against Kelly and the City of Los Angeles.
REVERSED AND REMANDED.
RAWLINSON, Circuit Judge, concurring.
I concur in the result.
March 1, 2012 § Leave a comment
Erin Baldwin has been a pro se litigant in California Superior Court, California Court of Appeals, the U.S. District Court and the U.S. Ninth Circuit Court of Appeals. She has never given up despite what most would consider insurmountable obstacles and always keeps a smile on.
If you’re a pro se litigant and have a question about your case, leave a comment here or send an email to firstname.lastname@example.org. Miss Baldwin is not an attorney but can offer a lot of help and support from her experiences, good and bad! These days its’s hard to afford an attorney and sometimes all you need is to be pointed in the right direction. It makes us so angry when we see what her opponents write about her on the Internet but she brushes it off.
She has also collected a large library of information she’d be happy to share. Anyway, she’s here to help anyone completely free of charge. It may not appear like it from all her struggles with the courts and such, but she always says, “I’m blessed!” Miss Baldwin also knows the value of PAYING IT FORWARD. So, there’s only one thing she asks if she helps you … give it away for free to the next person!
Here are some recent documents Miss Baldwin has filed in the U.S. Ninth Circuit Court of Appeals that she asked us to post that might be helpful.
Emergency Petition for First Amendment Writ of Mandate:
Court Order Denying Baldwin’s Petition for First Amendment Writ: 021512 Order From COA
Baldwin’s Petition for Rehearing: EMERGECY PETITION FOR REHEARING
Appeal on December 2, 2011 Order of Judge David O. Carter Violating Baldwin’s Constitutional Rights: NOTICE OF APPEAL FROM COA DOCKET
Court Order Denying Baldwin’s Appeal of Judge Carter’s December 2, 2011 Order: 11-57210-Order to Dismiss Appeal
Baldwin’s Petition for Rehearing of Dismissal of Appeal: 11-57210-PETITION FOR REHEARING-02232012-PACER VERSION
California Corruption Watch
CA Federal Judge Dolly Gee Commits Fraud Upon the Court to Conceal Favortism to California State Bar
January 27, 2012 § Leave a comment
See previous article: “Right From the Gate, Federal Judge Dolly Gee Shows Her Hand in Favor of the CA State Bar” https://cacorruptionwatch.wordpress.com/2012/01/19/right-from-the-gate-federal-judge-dolly-gee-shows-her-hand-in-favor-of-the-ca-state-bar/
In connection with a pro se Section 1983 Civil Rights Complaint, Federal Judge Dolly M. Gee is caught committing fraud upon the court to conceal her misconduct, in particular, her bias and prejudice in favor of the State Bar of California. See Motion to Disqualify Judge Gee here for all the facts: Motion to Disqualify Dolly Gee – PACER version – 021612
On August 16, 2011, Erin Baldwin filed a complaint in district court against the State Bar of California, among others, for violation of her First Amendment right to free speech and freedom of the press. CA Corruption Watch was informed that Chief Judge Audrey Collins has mandated that no Central District Court Judge can rule against the California State Bar. So, Miss Baldwin has fought an uphill battle from the start.
On January 26, 2012, Miss Baldwin received the following notification from district court stating that United States District Court Judge Dolly M. Gee denied Erin Baldwin’s Application to Appeal In Forma Pauperis. Here is the document she personally signed dated January 23, 2012: Original Order Denying In Forma Pauperis Application
The Notice of Electonic Filing states: “The following transaction was entered on 1/25/2012 at 2:25 PM PST and filed on 12/27/2011.” ORDER ON MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS by Judge Dolly M. Gee. The court has considered the motion and the motion is DENIED. The Court certifies that the proposed appeal is not taken in good faith under 28 U.S.C. 1915(a) and is frivolous, without merit and does not present a substantial question within the meaning of 28 U.S.C. 753(f) re:  Motion for Leave to Appeal In Forma Pauperis (car)
Today, Miss Baldwin received another notice wherein Judge Gee denied the same application, but this time the order has a hand stamp signature and the original order has been removed from Miss Baldwin’s Case Docket: Replaced Order Denying In Forma Pauperis Application
The Notice of Electonic Filing states: “The following transaction was entered on 1/27/2012 at 11:56 AM PST and filed on 1/23/2012.” ORDER by Judge Dolly M. Gee. The court has considered the motion and the motion is denied.(dmap)
We don’t know what’s going on over there, but we will keep you posted. See the Motion to Disqualify Judge Dolly M. Gee here: Motion to Disqualify Dolly Gee – PACER version – 021612
January 19, 2012 § 1 Comment
U.S. District Court Judge Dolly Gee is the next in line to preside over Erin Baldwin’s Section 1983 Civil Rights Case against The State Bar of California, et al. First, Magistrate Sheri Pym – gone. Next Federal Judge David O. Carter – gone. Now, the new kid on the block at the Western Division shows how far judges will go to protect the California State Bar.
While we like to give everyone the benefit of the doubt, today once again, the power of The State Bar was evident in the Central District Court of California. A little bird told us that Central District Chief Judge Audrey B. Collins has a standing edict:
Thou Shalt Not Rule Against The State Bar of California
So, they carefully chose Judge Dolly Gee to fill the “I Don’t Have to Follow the Rules” heels of Magistrate Sheri Pym and “My Ego is Too Big to Be Bothered” combat boots of Judge David O. Carter.
Judge Gee’s Order basically says “we don’t give a rip that this case is on appeal, we’re going to go ahead and rule on Orange County Superior Court Judge Franz E. Miller’s Motion to Dismiss because he has nothing to do with the appeal anyway.” Excuse me? But ruling on Judge Miller’s Motion is the same as dismissing the State Bar. Here’s why: Judge Miller is the central bad guy in this case who intentionally violated Miss Baldwin’s First Amendment rights in 2009 as “a favor” to the State Bar.
You see, Miss Baldwin was writing articles about how the State Bar was not taking responsibility for all their attorney members who were screwing people on loan modifications. She was encouraging consumers in foreclosure to seek restitution by way of the alleged “State Bar Client Security Fund” and when the apps were routinely rejected, she announced she was going to file a Writ of Mandate with the Court of Appeal to force them to do so.
However, Miss Baldwin is not an attorney so the State Bar had no direct way of retaliating against her, as they have against so many attorneys who have had the balls to stand up against them. So, instead, they cozied up with Judge Franz E. Miller who was ever so grateful to Tom Layton (California State Bar Investigator) for chosing him to be a judge on the superior court while he sat on the judicial selection committee of Governor Gray Davis in 2002. So when Layton came a callin’ with a favor of his own … why, of course I’ll enter two permanent injunctions against Baldwin to shut her the hell up. What are friends for, anyway?
The problem is … that’s breaking the law. For the past 3 years Erin Baldwin has been subjected to ongoing civil and criminal retaliatory prosecution that make up the claims in her Section 1983 Civil Right Complaint. And guess what, the injunctions were never even valid. But do you think you’re going to get anyone to admit that? Here they are:
Injunction No. 1: Parsa Injunction
Injunction No. 2: UDR Injunction
So, if you’re wondering why Miss Baldwin is having so many problems getting her claims heard in federal court you can thank the State Bar of California and their enormous influence over all judges in this state. Apparently, Judge Dolly Gee is just another puppet. Dismissing Baldwin’s claims against Judge Miller is the same as dismissing the claims against The California State Bar. So, what’s it going to be, Judge Gee?
Here’s the Order: Order 011912 Judge Miller MTD