Petition for Writ of Certiorari — Amery Gaspard, et al., Petitioners v. DEA Task Force, et al.

Supreme Court briefMay 2, 2018

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No.

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA.

AMERY GASPARD,

Petitioner,

DEA TASK FORCE a joint powers

police force, CHUCK ROSEN BURG, as

Acting Administrator, Drug Enforcement

Administration and Member of DEA

Task Force COUNTY OF SAN

BERNARdINO; apo1itical subdivision,

JOHN McMAHON, as Sheriff and

Member of DEA Task Force- COUNTY

OF RIVERSIDE; STANLE\ SNIFF, as

Sheriff, and Member of DEA Task

Force; CITY OF SAN BERNARDiNO, a

charted city and Member of DEA Task

Force; CM1 OF ONTARIO a municipal

corporation and Member of EA Task

Force B. KARMANN as Officer, DEA

Task Force OFF. THdRNBURG, as

Officer DEA Task Force SGT

SCHUELKE as Officer bEA Task

Force DET. IjENNETT as Officer,

DEA task Force; OFF. 'JEGA as

Officer DEA Task Force; OFF.

VAZQtJEZ, as Officer, DEA Task

Force OFF. CAMPOS as Officer, DEA

Task Eorce OFF. LUN'A as Officer,

DEA Task lorce; OFF. I'OALOU, as

Officer, DEA Task Force; OFF.

MADRIGAL as Officer, DEA Task

Force OFF \1ALDIVIA as Officer,

DEA task Force; ERNFST LEE

CARTWRIGHT, as informant/"snitch",

ase No.: 9th Cir. 16-56589

U. S. D. C. C. D. Cal. No. 5:15-cv802-BRO(kES) (C. D. Cal. 2016))

ETITION FOR WRIT OF

ERTIORARI.

Petition for Writ of Certiorari from

Judgment of the United States Court

Appeals for the Ninth Circuit.

Respondents.

AMERY GASPARD

YVONNE HRINDICH

1001 E. 3rd St., #35

Calimesa CA. 92320

TEL.: (969) 7d5-7275

Petitioners in Pro Se.

Petition for Writ of Certiorari

Bernardino

Gaspard v. City of San

QUESTIONS PRESENTED.

Should Petitioners' case against the DEA Task Force Officers be

dismissed even though the Officers were served three times?

Should Petitioner Gaspard be allowed to amend his Complaint to allege

different facts against the County of San Bernardino for violations of the

Americans with Disabilities Act?

Should Petitioners be sanctioned even though the Action against

Respondents County of Riverside and Sniff was not "frivolous,

malicious, or vexatious"?

Petition for Writ of Certiorari

Bernardino 2

Gaspard v. City of San

CORPORATE DISCLOSURE STATEMENT.

No Parties hold any stock or interest in any corporation, and they are listed

on the caption.

Petition for Writ of Certiorari

Bernardino 3

Gaspard v. City of San

TABLE OF CONTENTS.

CITATIONS,

STATEMENT OF JURISDICTION.

STATUTORY PROVISIONS.

STATEMENT OF THE CASE.

REASONS FOR GRANTING THE WRIT.

PETITIONERS SERVED THE SUMMONS AND SECOND

AMENDED COMPLAINT PURSUANT TO THE COURT'S LAST

ORDER.

DISMISSING THE ADA CLAIM AGAINST THE COUNTY

OF SAN BERNARDINO WAS IMPROPER SINCE THE NINTH

CIRCUIT STATED THAT SUCH AN AMENDED CLAIM WAS

PROPER SINCE 2012.

PETITIONER ARE NOT LIABLE TO RESPONDENTS

COUNTY OF RIVERSIDE, AND SNIFF FOR ATTORNEY'S FEES,

SINCE THE ACTION WAS NOT "FRIVOLOUS, MALICIOUS, OR

VEXATIOUS".

CONCLUSION.

Petition for Writ of Certiorari

Bernardino 4

Gaspard v. City of San

APPENDIX.

MEMORANDUM.

REPORT AND RECOMMENDATION OF UNITED STATES

MAGISTRATE JUDGE.

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE JUDGE.

ORDER GRANTING RIVERSIDE DEFENDANTS' MOTION FOR

ATTORNEY'S FEES.

ORDER DENYING REHEARING.

STATUTES.

Petition for Writ of Certiorari

Bernardino 5

Gaspard v. City of San

TABLE OF CASES.

Allen v. City of Los Angeles, 66 F.3d 1052, fn. 2 (91h Cir. 1995).

Boudettev. Barnette, 923 F.2d 754, 756 (9th Cir. 1991).

Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956).

Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978).

20,21

Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997).

Hughes v. Rowe, 449 U.S. 5,14-15 (1980).

20,21

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

Jensen v. Stangel, 762 F.2d 81.5, 817 (9th Cir. 1985).

Lacey v. Maricopa Cnty., 2012 U.S. App. LEXIS 18320 (9th Cir. 2012). 17-18

Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

Marx v. Loral Corp., 87 F.3d 1049, 1056 (9th Cir. 1996).

N.Y. City Emps.'Ret. Sys. v. Jobs, 593 F.3d 1018, 1025 (9th Cir. 2010).

Roberts v. Spalding, 783 F.2d 867, 874 (9th Cir), cert. denied, 479 U.S.

930, 107 S.Ct. 399, 93 L.Ed.2d 352 (1986).

Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Etc., Local 150, 440

F.2d 1096 (9th Cir. 1971).

Sotomura v. County of Hawaii, 679 F.2d 152 (9th Cir.1982).

United States v. Ringrose, 788 F.2d 638 (9th Cir. 1986),

Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.1994), cert.

denied, --- U.S.

----,

115 S.Ct. 510, 130 L.Ed.2d 417 (1994).

Wright v. City of Santa Cruz, 2014 U.S.Dist.LEXIS 91192, p. 2, fn. 2

(N. D. Cal. 2014).

Petition for Writ of Certiorari

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Gaspard v. City of San

TABLE OF AUTHORITIES.

5 U.S.C. § 3374(c)(2).

42 U. S. c., §1983.

8,20

42 U. S. c., §1988.

42 U. S. c., §12132.

Federal Rule of civil Procedure 54(b).

United States Constitution, Fourth Amendment.

United States constitution, Fifth Amendment.

United States Constitution, Fourteenth Amendment.

Petition for Writ Of Certiorari

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Gaspard v. City of San

CITATIONS.

The Judgment was rendered against Petitioners in the case of Gaspard v.

City of San Bernardino (2018), dated October 5, 2017.

STATEMENT OF JURISDICTION.

The Judgment was rendered against Petitioners in the case of Gaspard v.

City of San Bernardino (2018), dated February 2, 2018. This Court has jurisdiction

pursuant to 28 U. S. C., §1254(1).

STATUTORY PROVISIONS.

United States Constitution, Fourth, Fifth, and Fourteenth Amendments , and

42 U. S. C., §1983, and 12132 (Apx. 33).

STATEMENT OF THE CASE.

On September 3, 2015, Petitioners filed their original Complaint (Dock. No.

1).

On September 8, 2015, Petitioners were warned that the Summons and

Complaint had to be served within 120 days of filing the Complaint (Dock. No. 5).

On September 14, 2015, Petitioners filed the following Proofs of Service

showing when each Appellee was served:

City of San Bernardino, served on a Deputy City Attorney on September

4, 2015 (Dock. No. 6).

B. Karman, personally served (Dock. No. 7).

County of San Bernardino, served on Penny, working for the Clerk of the

Board of Supervisors (Dock. No. 9).

Sheriff John McMahon, served on Deana O.A.II, a subpoena control

officer on September 4, 2015 (Dock. No. 10).

On September 25, 2015, the County of Riverside, and it's Sheriff filed a

Motion (Dock. No. 13).

Petition for Writ of Certiorari

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Gaspard v. City of San

Also on September 25, 2015, the City of Ontario filed an Answer (Dock. No.

15).

Also on September 25, 2015, the County of San Bernardino, and it's Sheriff

filed an Answer (Dock. No. 16), which. was amended on September 28, 2015

(Dock. No. 17).

On November 3, 2015, Petitioners filed their First Amended Complaint

(Dock. No. 23).

On November 19, 2015, the County of Riverside, and the City of Ontario

filed their Motions to Dismiss (Dock Nos. 28 and 29).

On November 20, 2015, the County of San Bernardino filed it's Motion to

Dismiss (Dock. No 30).

On December 16, 2015, Petitioners filed the following Proofs of Service

showing when each Respondent was served:

Sgt Schuelke, served on the Internal Affairs Seargent on December 10,

2015' (Dock. No. 32).

Off. Thornburg, served on the Internal Affairs Seargent on December 10,

2015 (Dock. No. 33).

Off. Vasquez, served on the Internal Affairs Seargent on December 10,

2015 (Dock. No. 34).

Off. Vega, served on the Internal Affairs Seargent on December 10, 2015

(Dock. No. 35).

Off. Campos, served on the Internal Affairs Seargent on December 10,

2015 (Dock. No. 36).

Off. Madrigal, served on the Internal Affairs Seargent on December 10,

2015 (Dock. No. 37).

The Proofs of Service were dated based on the European system.

Petition for Writ of Certiorari

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Gaspard v. City of San

Det. Bennett, served on the Internal Affairs Seargent on December 10,

2015 (Dock. No. 39).

Off. Luna, served on the Internal Affairs Seargent on December 10, 2015

(Dock. No. 40).

B. Karman, served again on the Internal Affairs Seargent on December

10, 2015 (Dock. No. 41).

On January 6, 2016, Petitioners served Off. Valdivia on Ann, the Subpoena

Control Officer at the Redlands Police Department on that date (Dock. No. 42).

On March 9, 2016, the District Court ruled that there was "improper service"

SOLELY because the name of the Internal Affairs Seargent was not mentioned on

the Proofs of Service (Dock. No. 45).

On March 30, 2016, Petitioners filed the following Proofs of Service

showing when each Respondent was served:

Off. Koalou, served on Jennifer Kohrell, the Internal Affairs Seargent on

December 10, 2015 (Dock. No. 48).

Off. Thornburg, served on Jennifer Kohrell, the Internal Affairs Seargent

on December 10, 2015 (Dock. No. 49).

Off. Vasquez, served on Jennifer Kohrell, the Internal Affairs Seargent

on December 10, 2015 (Dock. No. 50).

Off. Vega, served on Jennifer Kohrell, the Internal Affairs Seargent on

December 10, 2015 (Dock. No. 51).

Sgt Schuelke, served on Jennifer Kohrell, the Internal Affairs Seargent on

December 10, 2015 (Dock. No. 52).

Off. Campos, served on Jennifer Kohrell, the Internal Affairs Seargent on

December 10, 2015 (Dock. No. 53).

Off. Madrigal, served on Jennifer Kohrell, the Internal Affairs Seargent

on December 10, 2015 (Dock. No. 54).

Petition for Writ of Certiorari

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Gaspard v. City of San

Det. Bennett, served on Jennifer Kohrell, the Internal Affairs Seargent on

December 10, 2015 (Dock. No. 55).

B. Karman, served again on Jennifer Kohrell, the Internal Affairs

Seargent on December 10, 2015 (Dock. No. 56).

Chuck Rosenberg, served on him and Attorney General Loretta Lynch by

certified mail on January 6, 2016 (Dock. No. 57).

11.0ff. Luna, served on Jennifer Kohrell, the Internal Affairs Seargent on

December 10, 2015 (Dock. No. 58).

12.0ff. Valdivia, served on Libby, the Subpoena Control Officer at the

Redlands Police Department on January 6, 2016 (Dock. No. 59).

On March 31, 2016, Marshall Bryan Toole submitted his Declaration in

response to the Order to Show Cause (Dock. No. 60).

On April 4, 2016, the District Court issued its Report and Recommendation

that Respondent County of San Bernardino, and Defendants McMahon, the County

of Riverside, and the City of Ontario should be dismissed from the Action below

(Dock. No. 65). The Claims against the County of San Bernardino dealt with

allegations of their involvement with the DEA Task Force, and not related to

Petitioner Gaspard's fall at the West Valley Detention Center.

On May 4, 2016, the District Court adopted the Report and

Recommendation, and dismissed that Respondent County of San Bernardino, and

Defendants McMahon, the County of Riverside, and the City of Ontario without

leave to amend, and gave leave to amend on the Second Amended Complaint

(Dock. No. 66).

On May 9, 2016, Petitioners filed their Second Amended Complaint (Dock.

No. 67).

Petition for Writ of Certiorari

Bernardino 11

Gaspard v. City of San

On May 17, 2016, the District Court struck the County of San Bernardino

from the Second Amended Complaint even though it did not include any DEA

Task Force allegations against them. (Dock. No. 68).

On May 23, 2016, Petitioners filed the following Proofs of Service showing

when each Respondent was served:

Off. Thornburg, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 70).

Sgt. Schuelke, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 71).

Det. Bennett, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 72).

Off. Vega, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 73).

Off. Vasquez, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 74).

Off. Campos, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 75).

Off. Luna, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 76).

Petition for Writ of Certiorari

Bernardino 12

Gaspard v. City of San

Off. Koalou, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 77).

Off. Madrigal, served on Det. Jefferies, the Internal Affairs Seargent on

December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 78).

10.13. Karman, served again on Det. Jefferies, the Internal Affairs Seargent

on December 10, 2015, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 79).

On May 24, 2016, the District Court declared service defective, solely by

"defective" Proofs of Service, and that service should not be done by Mr. Toole

(Dock. No. 81).

On June 16, 2016, Respondent County of Riverside filed a Motion for

Attorney's Fees (Dock No. 83). The County of Riverside argued that they were

entitled to attorney's fees even though their inclusion in the Action was not

frivolous.

On July 13, 2016, Petitioners filed their Opposition to the Motion for

Attorney's Fees in that the Action was not frivolous, malicious, or vexatious (Dock

No. 87).

On July 18, 2016, Respondent County of Riverside filed a Reply to the

Motion for Attorney's Fees (Dock No. 88).

On July 28, 2016, the District Court submitted a Minute Order requesting

information from the County of Riverside (Dock No. 89).

On August 2, 2016, Respondent County of Riverside filed a Supplemental

Reply to the Motion for Attorney's Fees (Dock No. 90).

Also on August 2, 2016, the District Court heard the Motion for Attorney's

Fees (Dock No. 91).

Petition for Writ of Certiorari Gaspard v. City of San

Bernardino 13

On August 26, 2016, the District Court issued it's Report and

Recommendation requesting dismissal of the case without prejudice (Apx. 4-11).

On September 6, 2016, Petitioners filed their Objection to the Report and

Recommendation in that Petitioners filed the Proofs of Service with the Objection,

and that Motions for Default Judgment would be filed on or after September 22,

2016 (Dock No. 95).

Also on September 6, 2016, Petitioners filed the following Proofs of Service,

executed by Robert A. Cotton, showing when each Respondent was served:

Off. Koalou, served on an African-American Subpoena Control Officer

on July 20, 2016, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 97).

Off. Valdivia, served on a White female Subpoena Control Officer at the

Redlands Police Department on July 20, 2016, and also later served

Appellee Rosenburg and the Attorney General by Certified Mail (Dock.

No. 98).

Off. Madrigal, served on an African-American Subpoena Control Officer

on July 20, 2016, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 99).

Off. Luna, served on an African-American Subpoena Control Officer on

July 20, 2016, and also later served Appellee Rosenburg and the Attorney

General by Certified Mail (Dock. No. 100).

Off. Campos, served on an African-American Subpoena Control Officer

on July 20, 2016, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 101).

Chuck Rosenberg, served on him and Attorney General Loretta Lynch by

certified mail on July 22, 2016 (Dock. No. 102).

Petition for Writ of Certiorari

Bernardino 14

Gaspard v. City of San

Sgt. Schuelke, served on an African-American Subpoena Control Officer

on July 20, 2016, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 103).

Off. Thornburg, served on an African-American Subpoena Control

Officer on July 20, 2016, and also later served Appellee Rosenburg and

the Attorney General by Certified Mail (Dock. No. 104).

Det. Bennett, served on an African-American Subpoena Control Officer

on July 20, 2016, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 105).

10.0ff. Vega, served on an African-American Subpoena Control Officer on

July 20, 2016, and also later served Appellee Rosenburg and the Attorney

General by Certified Mail (Dock. No. 106).

11. Off. Vasquez, served on an African-American Subpoena Control Officer

on July 20, 2016, and also later served Appellee Rosenburg and the

Attorney General by Certified Mail (Dock. No. 107).

12.B. Karman, served again on an African-American Subpoena Control

Officer on July 20, 2016, and also later served Appellee Rosenburg and

the Attorney General by Certified Mail (Dock. No. 108).

On September 22, 2016, THE DA Y PETITIONERS WANTED TO FILE A

MOTION FOR DEFAULT JUDGMENT, the District Court dismissed the

Defendants without prejudice for lack of prosecution (Apx. 12-13).

On October 20, 2016, the District Court ordered Petitioners to pay $3,250 to

the County of Riverside (Apx. 14-3 1).

On October 24, 2016, Petitioners filed a timely Notice of Appeal from the

September 22, and October 20, 2016 Orders (Dock. No. 117).

On November 4, 2016, the District Court issued the Partial Judgment under

Federal Rule of Civil Procedure 54(b) (Dock. No. 120).

Petition for Writ of Certiorari

Bernardino 15

Gaspard v. City of San

On April 24, 2017, Petitioners filed their Opening Brief (Ninth Cir. No. 8).

On May 25, 2017, Respondents County of Riverside and Sniff filed their

Appellees' Brief (Ninth Cir. No. 18).

On July 12, 2017, Petitioners filed their First Reply Brief (Ninth Cir. No.

27).

On July 13, 2017, Respondent County of San Bernardino filed their

Appellee's Brief (Ninth Cir. No. 25).

On July 27, 2017, Petitioners filed their Second Reply Brief (Ninth Cir. No.

32).

On October 5, 2017, the Ninth Circuit ruled against Petitioners (Apx. 1-3).

On October 19, 2017, Petitioners filed their Petition for Rehearing En Banc

(Ninth Cir. No. 38).

On February 1, 2018, the Ninth Circuit denied Rehearing (Apx. 32).

REASONS FOR GRANTING THE WRIT.

I. PETITIONERS SERVED THE SUMMONS AND SECOND

AMENDED COMPLAINT PURSUANT TO THE COURT'S LAST ORDER.

On July 20, 2016, Petitioners had Robert A. Cotton served the individual

Police Officers by serving their Subpoena Control Officer on July 20, 2016.

On July 22, 2016, Petitioners also had Robert A. Cotton served Defendant

Chuck Rosenburg, and the individual Police Officers by serving Rosenburg and the

Attorney General by Certified Mail.

In the case of Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991),

Appellants may establish good cause to survive dismissal on the basis of lack of

service by showing that "(a) the party to be served personally received actual

notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff

would be severely prejudiced if his complaint were dismissed."

Petition for Writ of Certiorari

Bernardino 16

Gaspard v. City of San

The Police Officers cannot be reasonably served if they were on duty, and

otherwise following the law by properly apprehending the actual bad guys. Since

the Officers acted as DEA Task Force Officers, who brutalized Appellants like

Nazis and ransacked their house, they were served on their Subpoena Control

Officers, but were also served on them by service of Certified Mail to the Attorney

General and Appellee Rosenburg. Since defense would be by the United States,

and not the City of San Bernardino (who was in Chapter 9 Proceedings at the time)

they would not be prejudiced. Petitioners would be prejudiced if they have to refile

their case again. Since service is complete, it is not the proof of service that has to

be timely, but the service • itself. This case should not be dismissed, since

Petitioners had to serve these Defendants about three times already.

II.

DISMISSING THE ADA CLAIM AGAINST THE COUNTY OF SAN

BERNARDINO WAS IMPROPER SINCE THE NINTH CIRCUIT STATED

THAT SUCH AN AMENDED CLAIM WAS PROPER SINCE 2012.

On May 17, 2016, the District Court dismissed the County of San

Bernardino solely because they were alleged to be a Member of the DEA Task

Force, which they still are. Afterwards, Petitioner Gaspard added them as a

Defendant for physical injuries under the Americans with Disabilities that he

incurred while at the West Valley Detention Center after his arrest. The District

Court struck this Claim when it claimed that it was outside the scope of it's leave

to amend, and filing of the Second Amended Complaint.

The case of Lacey v. Maricopa Cnty., 2012 U.S. App. LEXIS 18320 (9th

Cir. 2012), explains that:

"Before we consider his claim to immunity, we must address

whether the claims against Maricopa County Attorney Andrew

Thomas are properly before us, as our circuit law appears to require

that we consider the claims against Thomas to be waived. Thomas

was named as a defendant in the original complaint, but the

district court dismissed him from the case in its October 2008

Petition for Writ of Certiorari

Bernardino 17

Gaspard v. City of San

order after finding that he was entitled to absolute prosecutorial

immunity. Although the court granted leave to amend claims

against other parties, it did not grant Lacey leave to amend the

claims against Thomas. Lacey filed his First Amended Complaint,

he mentioned Thomas throughout the facts, but he removed all

reference to Thomas as a defendant.

"We have long proclaimed that 'lilt is the law of this circuit

that a plaintiff waives all claims alleged in a dismissed complaint

which are not realleged in an amended complaint.' Forsyth v.

Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); see N.Y City

Emps. 'Ret. Sys. v. Jobs, 593 F.3d 1018, 1025 (9th Cir. 2010); King v.

Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); London, 644 F.2d at 814;

Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Etc., Local 150,

440 F.2d 1096 (9th Cir. 1971); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

1967); Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956).

(For convenience, we will refer to the rule as the 'Forsyth rule.') The

Forsyth rule is 'premised on the notion that the "amended complaint

supersedes the original, the latter being treated thereafter as nonexistent." If a plaintiff fails to include dismissed claims in an amended

complaint, the plaintiff is deemed to have waived any error in the

ruling dismissing the prior complaint.' Forsyth, 114 F.3d at 1474

(citation omitted) (quoting Loux, 375 F.2d at 57). We have indeed

considered this rule to be 'hornbook law,' Bullen, 239 F.2d at 833,

even as we have recognized that it is 'somewhat harsh,' Marx v. Loral

Corp., 87 F.3d 1049, 1056 (9th Cir. 1996). This rule would appear to

preclude Lacey from asserting claims against Thomas in this appeal.

"We therefore join our sister circuits and overrule in part the rule

found in Forsyth and other cases 'that a plaintiff waives all claims

alleged in a dismissed complaint which are not realleged in an

amended complaint.' Forsyth, 114 F.3d at 1474."

I/I

Petition for Writ of Certiorari

Bernardino 18

Gaspard v. City of San

Here, Petitioner Gaspard was trying to include an ADA Claim that had

nothing to do with the DEA Task Force actions during his arrest, but in a separate

incident where Appellant Gaspard fell at the West Valley Detention Center. The

County should had filed a Motion to Dismiss to challenge that Amended

Complaint, not have the District Court act for them.

III. PETITIONERS ARE NOT LIABLE TO RESPONDENTS COUNTY

OF RIVERSIDE, AND SNIFF FOR ATTORNEY'S FEES, SINCE THE

ACTION WAS NOT "FRIVOLOUS, MALICIOUS, OR VEXATIOUS".

The County of Riverside and its Sheriff's Department are Members of the

"DEA Task Force". Its individual Officers in the DEA Task Force, viciously

injured Appellees. The case of Wright v. City of Santa Cruz, 2014 U.S.Dist.LEXIS

91192, p. 2, fn. 2 (N. D. Cal. 2014), explains that:

"Those individuals are Brendan Omori, John Fernandez Joshua

Singleton, and Anthony Parker. It appears from the briefng that

Fernandez was a DEA agent and that Ornori, Singleton and Parker

were local law enforcement officers specially deputized by the DEA.

(Reply at 2, ECF 63) A local law enforcement officer on detail to a

federal agency is deemed to be an employee of the agency for

urposes of the FTCA. 5 U.S.C. § 3374(ç2). Plaintiffs do not dispute

phe moving parties' characterization of all four officers as 'Individual

Federal Agents."

Here, the entities previously alleged in the First Amended Complaint were

part of the Joint Federal-State Task Force, and the Officers were clearly Federal

Agents, despite the individual Officers being initially employed by the City of San

Bernardino, and were exercising Federal law outside of San Bernardino City

Limits.

Appellants did not sue anybody in confusion. Since it was a "Task Force",

and each Member of the Task Force was a participant, they should have supervised

the conduct of all of their Officers. Since the individual Officers lacked probable

cause to harm Appellants and ransack their home, it was alleged that the Members

of the DEA Task Force were responsible for the damages for the failure to train the

Petition for Writ of Certiorari

Bernardino 19

Gaspard v. City of San

individual Officers. The inclusion of Appellees County of Riverside and Sniff is

not "frivolous, malicious, or vexatious". The case of Hughes v. Rowe, 449 U.S. 5,

14-15 (1980), explains that:

"In Christians burg Garment Co. v. EEOC, 434 U. S.

412 (1978), we held that the defendant in an action brought under

Title VII of the Civil Rights Act of 1964 may recover attorney's fees

from the plaintiff only if the District Court finds 'that the plaintiffs

action was frivolous, unreasonable, or without foundation even

though not brought in subjective bad faith.' Id. at 434 U. 9 421.

Although arguably a different standard might be applied in a civil

rights action under 42 U.S.C. § 1983, we can perceive no reason for

applying a less stringent standard. The plaintiffs action must be

meritless in the sense that it is groundless or without foundation. The

fact that a plaintiff may ultimately lose his case is not, in itself, a

sufficient justification for the assessment of fees. As we stated

in Christiansburg:

"To take the further step of assessing attorney's

fees against plaintiffs simply because they do not finally

prevail wou[d substantially add to the risks inhering in

most litigation and would undercut the efforts of

Congress to promote the vigorous enforcement of the

provisions of I itle VII. Hence, a plaintiff should not be

assessed his opponent's attorney's fees unless a court

finds that his claim was frivolous, unreasonable, or

groundless, or that the plaintiff continued to litigate after

it clearly became so."

"434 U.S. at 434 U. S. 422. No such finding supported the fee

award in this case."

The case of Allen v. City of Los Angeles, 66 F.3d 1052, fn. 2 (9th Cir. 1995),

also states that:

"We deny defendant Timothy Singer's request for an award of

attorney fees. A prevailing defendant in a civil rights action is not

entitled to attorney fees under 42 U.S.C. Sec. 1988 merely because he

prevails on the merits of the suit. Vernon v. City of Los Angeles, 27

F.3d 1385, 1402 (9th Cir.1994), cert. denied,

U.S.

115 S.Ct.

510, 130 L.Ed.2d 417 (1994). Allen's action was not 'unreasonable,

frivolous, meritless, or vexatious.' Id. (quoting Roberts v. Spalding,

783 F.2d 8671 874 (9th Cir), cert. denied, 479 U.S. 930, 107 S.Ct. 399,

93 L.Ed.2d 352 (1986))"

---

Petition for Writ of Certiorari

Bernardino 20

Gaspard v. City of San

----,

The case of United States v. Ringrose, 788 F.2d 638 (91h Cir. 1986), finally

states that:

"All parties seek attorney's fees on appeal under 42 U.S.C. Sec.

1988. Although attorney's fees may be awarded at the appellate as

well as the trial level, Sotomura v. County of Hawaii, 6.79 F.2d

j (9th Cir. 1982), a prevailing defendant is entitled to an award of

fees only where the plaintiffs action was 'frivolous, unreasonable, or

without foundation.' Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 1735

178, 66 L.Ed.2d 163 (1980) (quoting Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978));

Jensen v. Stangel, 762 F.2d 815, 817 (9th Cir.1985). The Chumash

raise issues not previously addressed by the courts, and their case

cannot be characterized as frivolous or unreasonable. We therefore

deny all requests for attorney's fees."

Here, the individual Officers yelled "Task Force", not "Police!" If the Task

Force Officers did not act like Nazi savages, this suit would not be filed at all.

Petitioners allege that if the Member Agencies made sure that each of their officers

comply with the Constitution, this world would be better off. Although Petitioners

were not killed, rogue Nazi tactics that occurred in Baton Rouge, Louisiana, and

St. Paul, Minnesota would not have happened if police officers were properly

trained.

I/I

I!'

I/I

III

I!'

III

Petition for Writ of Certiorari

Bernardino 21

Gaspard v. City of San

CONCLUSION.

Petitioners requests that this Court reverse the Orders of Dismissal and the

granting of attorney's fees, and award them their fees and costs.

Dated this 30th day of April, 2018

AMERY3d

GASPARD

1001 E.

St., #35

Calimesa CA., 92320

TEL.: (9d9) 705-7275

Petitioner in Pro Se.

Dated this 30th day of April, 2018

By:__________________

YVONNE

HRINDICH

1001 E. 3rd St., #35

Calimesa

.1 92320

TEL.: (9d9) 705-7275

Petitioner in Pro Se.

Petition for Writ of Certiorari Gaspard v. City of San

Bernardino 22

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