Petition for Writ of Certiorari — Raiser v. Kono (No. 07-947)

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Supreme Court, U.S.

PE TLE .

O07 -947 JAN 3 - 2008

____ OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

AARON RAISER,

Petitioner,

DAVID M. KONO ET AL,

Respondents.

October Term, 2007

Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

Petition for Writ of Certiorari

Aaron Raiser, Pro Se

20058 Ventura Blvd. #113

Woodland Hills. CA 91364

Questions Presented for Review

1. (a) Whether the Tenth Circuit's holding in

dismissing Petitioner's 42 U.S.C. §1983 claims - that a

private party only acts under color of state law if they

are engaged in a conspiracy with a state official -

conflicts with years of established case law from this

Court under Lugar v. Edmondson Oil Co., Inc., 457

U.S. 922, 937 (1982) which holds state action can be

present if the private party “has acted together with or

has obtained significant aid from state officials, or

because his conduct is otherwise chargeable to the

State."

(b) Whether the Tenth Circuit's dismissal of Petitioner's

§ 1983 claim under this Court's recent standard set forth

in Bell Atlantic Corporation v. William Twombly 127

S.Ct. 1955 (2007) was incorrect where Petitioner's 63

page Complaint contained detailed allegations to

support the 42 U.S.C. §1983 claim, and where each

element of §1983 was satisfied by the facts of the

Complaint, and supported by Lugar v. Edmondson Oil

Co., Inc., 457 U.S. 922, 937 (1982), where the Tenth

Circuit's basis for dismissal was that Petitioner failed to

allege a conspiracy, where Lugar v. Edmondson Oil

Co. only requires that the private party “has acted

together with or has obtained significant aid from state

officials. or because his conduct is otherwise

chargeable to the State” and where 10" Cir. case law

otherwise holds Petitioner's §1983 claim actionable?

2. (a) Whether the Tenth Circuit holding that a federal

court can not issue a writ of mandamus to a state court

judges is contradicted by this Court's case law found in

Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80

L.Ed.2d 565 (1984) which states that writs of mandate

are permissible to state court judges?

(b) Whether due process of law as embodied in Fed. R.

Civ. Proc. 15{a) is violated where the Tenth Circuit

disallowed any chance to Petitioner to amend his

complaint to change the requested relief from a writ of

mandamus to injunctive relief, where the case would

have been actionable had injunctive relief been sought,

and where the case had been dismissed in the lower

court sua sponte without allowing any briefing on the

law of fact of the case?

3.Whether the Tenth Circuit's dismissal of Petitioner's

42 U.S.C. §1985 claim was in error where Petitioner

satisfied each element of §1985 but where the Tenth

Circuit held that because the conspiracy utilized the

state judicial process, though unlawfully, it was in-

actionable under §1985, where the violators unlawfully

utilized Utah Rule of Professional Conduct 3.3(d) to

obtain an arrest warrant for Petitioner and using that

threat of certain arrest and physical incarceration had

he — a party and witness in his court proceedings —

entered the state, to obtain witness testimony in his

court cases, and to attend his hearings, which hindered

him in his court cases and obstructed the due

administration of law?

4. Whether dismissal of Petitioner's RICO claim was in

error where Petitioner satisfied each element of a

RICO claim, yet the Tenth Circuit held it in-actionable

because the violator uuilized the state judicial process to

bring about the RICO violation, unlawfully utilizing

Utah Rule of Professional Conduct 3.3(d) to obtain an

arrest warrant for Petitioner — a party and witness in his

court proceedings - to prevent him from entering the

State, to obtain witness testimony in his court cases,

and to attend his hearings, which hindered him in his

court cases and obstructed the due administration of

law?

5. Whether the language and intent of Congress in

enacting 28 U.S.C §455 requires that the actual Judge

or Magistrate being asked to recuse themself to rule on

the motion where the language of §455 uses the

reflexive language “disqualify himself” from any

proceeding where his impartiality could reasonably be

questioned, where the magistrate or judge can only

disqualify themselves if they review it themselves?

6. (a) Whether due process of law requires a Federal

Court of Appeals — which raises Standing for the first

time on Appeal sua sponte — to allow the party

adversely affected an opportunity to show they in fact

have standing, where the District Court denied briefing

in the case and where as a result Petitioner could not

breif the standing issue or amend the complaint to

show he in fact had Standing in the District Court,

where Standing was found lacking because the Tenth

Circuit assumed that Petitioner would not benefit from

the releif sought, where injury-in-fact and the existance

of unconstitutional conduct was not in dispute?

(b) Whether Standing can exist to redress a

Separation of Church / State violation in Utah, where a

Separation of Church / State violation is in fact found

to exist, where injury in fact is found to exist resulting

from that violation, but where because the time

required to correct the violation naturally would take so

much time that the person affected by the violation

could not benefit from that remedy, making it

impossible to redress that Separation of Church / State

violation?

7.Whether due process of law was denied when the

Tenth Circuit denied Petitioner any chance to file a

reply brief on Appeal to BY U's brief, where the reply

brief could have pointed out and corrected the many

factual and legal errors which Tenth Circuit took as

correct and relied on to uphold dismissal, where the

factual contentions had no support in the lower court?

8. Whether oral argument in the Tenth Circuit would

have aided due process of law where opportunity for

oral argument was denied and where the Tenth Circuit

set aside the legal basis for dismissal in the lower court,

and decided the basis for dismissal de novo?

Parties to the Proceedings

DAVID M. KONO;

DANIEL L. STEELE;

FRED HOWARD, official capacity;

BENNETT TUELLER JOHNSON & DEERE;

BRIGHAM YOUNG UNIVERSITY;

JON HUNTSMAN, official capacity.

Corporate Disclosure Statement:

Petitioner is not filing for or on behalf of a

Corporation.

TABLE OF CONTENTS

Questions Presented for Review ..................0000008 ill

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Opinions Below ....... pltconesinantibngasd ieee l

FRM TRGACTIOTRE SOCRICTTNONNE oo c ca ckvkcccecesscevia teas ]

Constitutional Provisions, Statutes .................. ]

SSheremerel OE Te CW oicanccsesssnaisiinncnascnsseamanen l

Argument - Reasons for Granting the Writ ........... 11

I. A. The Tenth Circuit's holding that a private party

only acts under color of state law if they are engaged in

a conspiracy with a state official conflicts with years of

established case law from this Court under Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982) 11

B. The Tenth Circuit's dismissal of Petitioner's 1983

claim under this Court's recent standard set forth in

Bell Atlantic Corporation v. William Twombly 127

S.Ct. 1955 (2007) was incorrect where Petitioner's 63

page Complaint contained detailed allegations to

support the 1983 claim and the only infirmity was the

Tenth Circuit's misunderstanding that a private party is

only a a State actor if acting in a conspiracy with a state

official 17

Vill

II. A. Due Process of Law is Violated where a trivial

Amendment of the Complaint would cure an alleged

deficiency. 18

B. The Tenth Circuit holding that a federal court can

not issue a writ of mandamus to a state court judges is

contradicted by this Court's case law 19

If]. 28 U.S.C 455 Implicitly Mandates that the actual

Judge or Magistrate must rule on a motion for their

recusal 20

IV. A. An Opportunity to Show the Standing should

have been allowed where no Opportunity was allowed

to brief the matter or amend the complaint to show

standing was permitted in the lower court. 23

B. Standing can exist to redress a Separation of

Church / State violation in Utah, where a Separation of

Church / State violation ts in fact found to exist, where

injury in fact is found to exist resulting from that

violation, but where because the time required to

correct the violation naturally would take so much time

that the person affected by the violation could not

benefit from that remedy, making it impossible to

redress that Separation of Church / State violation 25

V. The Tenth Circuit Circuit's dismissal of the 1985

claim ignores the plain language of 1985; the Facts of

the Complaint fully support a 1985 Claim 29

VI. Each Element for Claim under RICO was satisfied

in the case at bar 32

VII. Due Process of Law requires a Reply Brief, Oral

Argument Where No Briefing was permitted in the

District Court and the Court of Appeals Fashioned new

reasons for dismissal for the first time on appeal 34

Conclusion & Relief Sought ............................ 34

TABLE OF CITIATIONS

Cases

Allen v. Wright, 468 U.S. 737, 751 (1984) ...... 27

Ballard v. Wall, 413 F.3d 510 (Sth Cir. 2005) . 1S

Bell Atlantic Corporation v. William Twombly 127

S.Ct. 1955 (2007)

City of Los Angeles v. Lyons, 461 U.S.95 (1983) 24

Lugar v. Edmondson Oil Co.. Inc., 457 U.S. 922

(1982) = picablipebiatiedes | 11,12

Murphy v. Hunt, 455 U.S. 478, 482 (1982) 2427

Pulliam v. Allen, 466 U.S. 522 (1984) .......... 19.20

Snell v. Tunnell, 920 F.2d 673 (1990) ............. 13

Constitutional Provisions

U.S. Constitution Amend. I ......................., App J.23-25

U.S. Constitution Amend. V ......... App J. 11-19,23-34

, § Ree, ey rrr App J. 18

Utah Rule of Professional Conduct 3.3(d) App J,11-24

Statutes

I Oe I ca ed App J, 32

SS Ea: a

OEE okt) PP TT

SD eT |: 25

APPENDIX

Appendix A - United States Court of Appeals for the

Tenth Circuit Order affirming Dismissal.

Appendix B — Order on Rehearing

Appendix C — Order Dismissing Case — United States

Federal Court District of Utah.

Appendix D - Report & Recommendation Dismissing

Case — United States Federal Court District of Utah

(Excerpts pertinent to case - to save space / cost etc.)

Appendix E — Docket U.S. Court of Appeals for the

fenth Circuit

Appendix F — Petitioner's Amended Complaint (AC)

Appendix G — Utah District Court Order Deny

Removal — Finding violation of 28 U.S.C. § 1446(a)

by BYU

Appendix H — Petition for Rehearing in the Tenth

Circuit, United States Federal Court

Appendix I — Opening Brief — ‘Tenth Circuit (Excerpts

pertinent to case - to save space / cost etc.)

Appendix J - — Full Citation to Authorities

OPINIONS BELOW

On July 5, 2007 the District Court entered an Order

Dismissing the Case. (Appendix A).

On August 6, 2007 the Court of Appeal for the Tenth

Circuit entered an Order denying Rehearing.

(Appendix B).

JURISDICTIONAL STATEMENT

The date the Order and Judgment was entered by the

Court of Appeals for he Tenth Circuit was July 5,

2007.

A petition for rehearing was denied on August 6, 2007.

On 24 October, 2007 a 60 day extension of time was

permitted to file this Petition by this Court. See

07 A350 in this Court's docket.

This Court's jurisdiction to review, on a writ of

certiorari, the decision of the Tenth Circuit U.S. Court

of Appeal is conferred by 28 U.S.C. § 1254.

A Petition for Writ of Mandamus has also been

submitted to this Court on or about 23 December, 2007

which would affect the need for this Petition.

STATEMENT OF THE CASE

The judiciary of the state of Utah over the years has

been systematically filled with LDS (The Church of

Jesus Christ of Latter-day Saints) judges due to the

LDS church being in the majority politically. See

Amended Complaint (AC) { 180 (The Amended

Complaint is found attached herein as Appendix F).

The religious composition in the state of Utah is

approximately 50% LDS. Id. Yet of the 12 judges

serving in the state judicial district of Utah County

where Petitioner has litigated state cases against BYU,

an LDS church institution, each (100%) of those 12 are

LDS. AC { 169.

Of the 7 members on the Utah Court of Appeals, all

(100%) 7 are LDS. AC Ff 148. The LDS church

however has very strong religious beliefs concerning

the truthfulness of its religion. Its beliefs are that it is

the Lord’s only true church, guided and directed by the

Lord himself. AC FJ 182-184. LDS faithful are

required to accept and stake their entire lives on that

premise. *FN1

FN1 Petitioner is not challenging beliefs or their

correctness. These are pointed out as they are material

to the outcome of the case.

Important for this Petition, LDS faithful must also take

a religious oath in their temples that they shall defend

and promote the LDS church. AC JJ 185-193. BYU, a

LDS religious institution, 1s taught as church doctrine

to be the Lord’ s University. AC { 202.

These beliefs create a conflict for the LDS judges when

either the LDS church or one of its affiliates such as

BYU is a litigant to a court case. AC J 215. Petitioner

has been :njured as the state judges hearing his cases

have been inordinately biased in favor of BYU based

on their religious affiliation. AC {4 195-200.

For example, in state case 020403619 BYU removed a

State case to federal court where no federal cause of

action existed. That wrongful use of the removal

procedure caused an entire | year delay in the state case

as it was not remanded to state court until 1 year later.

This was of no fault of the Petitioner as he filed the

proper motion to remand in federal court right after

removal was denied about 2 weeks after it was

removed, Petitioner even calling the federal court chief

judge’s chambers assigned to hear the case repeatedly

to remand it, but the chief failed, for no explained

reason, to remand for | year. AC YJ 19-46.

Upon remand, the state court judge, however improper,

used his discretion to deny any further amendment to

the complaint because after 1 year amendment would

not be allowed which caused the case to be dismissed.

Petitioner could not amend the complaint earlier due to

the case being stayed in federal court per the improper

removal. Further, a delay in obtaining critical witness

testimony was denied, where witnesses either forget, or

move etc. making prosecution of the case difficult. AC

{1 19-46.

The the federal judge ruling against removal stated in

the Order denying removal that B YU's removal

violated 28 U.S.C. §1446 because no federal cause of

action was present in the state court case. See District

Court Order attached as Appendix C.

Petitioner considered the removal a violation of 28

U.S.C. §1446 and was injured by a one year delay in

the state case so Petitioner filed a motion for sanctions

in state court. Instead of imposing sanction or so much

as a reprimand of BYU, the state judge fined Petitioner

$2751 for filing the motions saying it was frivolous .

Thus BYU violated the federal removal procedure,

caused a | year delay in the state court case, allowing

them to win that case, the federal courts held BYU

violated 28 U.S.C. §1446, yet the state court judge held

BYU violated no rules and sanctioned Petitioner for

filing a motion to redress the BYU misconduct. AC J

19-46.

BYU then later found out at a federal hearing that

Petitioner, a resident of California, was homeless and

barely had enough money to survive from day | to day

and could not travel to Utah for discovery in that case.

AC {J 55-57. With that information BYU then applied,

in an ex parte proceeding to a state court judge, for an

Order requiring Petitioner to travel from California to

Utah to attend a state court hearing, and BYU prepared

an Order for the Judge to sign that stated that if

Petitioner failed to attend the hearing, he would face

arrest. AC {| 58-59. BYU purposefully withheld from

the judge in the ex parte proceeding that Petitioner was

unable to travel to Utah for the hearing and did so with

the intent and purpose of interfering with Petitioners

ability to travel to Utah and attend his court hearing,

obtain witness testimony such as depositions against

BYU. AC J¥ 83-85.

Utah Rules of Professional Conduct require an attorney

in an ex parte proceeding to inform the judge of all

material facts which are needed for the judge to make

an informed decision. AC { 72. It goes without saying

that the inability of Petitioner to attend that hearing was

material to the judge making a proper determination in

the ex parte proceeding as it guaranteed BYU their

arrest warrant for their adversary in their court

proceedings.

BYU also mislead the state trial judge and cited as

authority Utah R. Civ. Proc. 69 in the motion leading to

the arrest, where Utah R. Civ. Proc. 69 does not exist.

AC Yj 70—71. In the ex parte proceeding BYU also

had an affirmative duty to inform the trial judge that

Petitioner did not have the means to attend the hearing.

AC YJ 72.

Petitioner did not attend due to his poverty and the

hearing and the arrest warrant was issued. AC {J 79.

With that threat of arrest, BYU attempted to coerce

Petitioner into dropping his cases against BY U in

exchange for them dropping the arrest warrant which

warrant threatened Petitioner with the use of physical

force. AC {J 73-74.

With that arrest warrant, Petitioner was hindered, and

otherwise unable to travel to Utah to (1) attend any

legal proceedings in which he was involved, (2) obtain

witness information (3) give testimony in any legal

proceedings in Utah or (4) to appear as a witness in

federal and state proceedings or hearings or obtain

other evidence needed for those proceedings. AC { 85.

Prior to obtaining the arrest warrant in violation of

Utah Rules of Professional Conduct 3.3 the defendants

in the case Kono, Steele and BYU conspired together

to utilize Utah Rules of Professional Conduct 3.3 to

deprive Petitioner of his civil rights, to prevent him

from entering Utah to obtain witness testimony, attend

court proceedings and to prosecute his cases Against

them, and then took acts to further that conspiracy to

violate Petitioners rights to access to the federal court

system in Utah, to obtain witness testimony, and to

give testimony in the federal and state cases against

BYU. AC J 116, 237. The state court judge was

aware that Utah R. Civ. Proc. 69 does not exist and

provided no authority for the arrest warrant. AC { 80.

The state court judge was also aware that Petitioner

was homeless and near penniless. AC {{ 97-99. See

also AC { 321. Petitioner has filed many motions to

rescind the state arrest warrant order but the state court

judge has denied each. AC JJ 105,106.

The state court judge (Defendant Howard) also

sanctioned Petitroner when he filed a URCP Rule 11

(which mirrors the FRCP) motion against BYU

regarding the unlawful manner BY U obtained the

arrest Warrant ex parte without telling the judge

Petitioner could not financially afford to attend the

hearing where BYU was fully aware of that fact, and

the natural consequences of that in them getting the

arrest warrant for Petitioner. The total monetary

sanctions imposed were $4748. AC 7 323. The state

court judge said the motion was without merit.

The arrest warrant for Petitioner remains in effect. AC

{| 105. While not specifically mentioned, it would be

likely be rescinded upon payment to BYU of the $4748

which might be some time given Petitioner being

homeless and under some financial difficulty.

Other instances of procedural and substantive prejudice

in favor of BYU by the Utah state courts are also

alleged. AC JJ 153-162; 144-147.

With respect to the factual allegations regarding the

religious composition of the Utah Judiciary and the

resulting injury to Petitioner’s ability to get a fair

hearing against BY U and due process of law rights, a

claim for Separation of Church and State under the

First Amendment is claimed. AC at 24-25. The relief

sought with respect to Governor Huntsman who its in

charge of selecting the judicial nominating members

who make binding recommendations for filling state

judgeships, is that steps be taken to ensure that the state

judiciary more closely reflects the religious

composition in Utah. AC at 29.

A claim against Judge Howard is brought regarding the

same separation of church state claim along with a §

1983 claims to rescind the arrest warrant and the $4748

sanctions. AC at 28, 29 (Eighth, Ninth Claim). The

unlawful arrest warrant also interferes and burdens

Petitioner's right to interstate travel as he can no longer

travel to or through that state without facing arrest.

The appeal to the Utah Appeals and Supreme Courts to

have the arrest warrant and $4748 sanctions rescinded

was denied and a Petition for Writ of Certiorari to the

Utah Supreme Court on the matter was denied in 07-

442 on Dec. 3, 2007 by this Court, leaving only the

federal courts to redress the wrong done to Petitioner

on the matter.

Declaratory relief is also sought. Id. (Seventh, Eighth

Claim) Because the actions of Defendants Kono,

Steele and BYU deprived, obstructed and/or hindered

Petitioner to rights to interstate travel, the ability to

prosecute and attend his state and federal court cases,

obtain evidence, obtain witness testimony, give his

testimony in those cases and interfered with

Petitioners due process of law rights, and because those

actions were done under color of state law, a cause of

action under §1983 is alleged, along with a Cause of

Action under RICO for interfering with witness and

evidence taking in a federal court case, a related claim

under §1985 for the conspiracy which preceded, and

was part of, the deprivation of those rights and

interference with and hindering Petitioner’s rights to

attend federal court hearings, and his ability to obtain

witness and related evidence in federal court cases are

alleged. AC at 19-27.

Procedural History

The District Court ordered that no briefing would occur

on the Complaint and the case was reviewed by a

magistrate and dismissed without any briefing by the

parties. The basis for that Order to deny briefing was

overturned on Appeal. (See Order, Appendix A at 3-4

FN2)

The magistrate found that the 63 page complaint was

not lacking in supporting factual allegations *FN2 per

se, however, he did find that the claims were barred by

either the Rooker Feldman doctrine and Eleventh

Amendment immunity. See Report and

Recommendation excerpts attached herewith as

Appendix D.

FN2 Some factual error were present which caused him

to dismiss claims under Rooker Feldman, which turned

out to be incorrect. For example, the magisrate mad

the assumption unsupported by anything anywhere that

Petitioner's state court cases had completed and his

State remedies exhausted at the time the complaint was

filed, which was incorrect. See the amended complaint

(AC) G51.

Petitioner successfully showed on appeal that the the

Rooker Feldman doctrine was not a bar to any claim

and that Eleventh Amendment Immunity did not apply

because Petitioner was seeking prospective, non-

monetary relief against Governor Huntsman. See

Opening Brief of Petitioner in the Tenth Circuit

attached as Appendix [.

The Tenth Circuit agreed and in upholding dismissal,

never found Rooker Feldman doctrine applicable in the

case and likewise never found the Eleventh

Amendment immunity a bar to the claim against

Governor Huntsman. See Appendix A (entirely

omitting the basis for dismissal of the District Court)

Thus, without any briefing in the lower court to

develop and refine the facts and law in the case, the

complaint was dismissed on faulty legal grounds. Then

the Tenth Circuit, for the first time on appeal, came up

with a new basis for dismissal for the 1983, 1985 and

RICO claims. This is troubling. The Tenth Circuit

did a de Novo adjudication on Appeal and not a de

Novo review, and due process of law suffered because

the Tenth Circuit made numerous factual error and the

facts and law of the case could not be developed.

The Tenth Circuit refused to allow Petitioner a chance

to file a Reply Brief on appeal to BYU's brief. That

would have been helpful to due process of law in the

case because the Tenth Circuit also came up with

numerous new facts on appeal having no support in the

lower court.

Also, the Tenth Circuit denied Petitioner's request for

Oral argument which likewise would have been heipful

to a fair outcome in the appeal given that the the basis

for dismissal was decided de novo without any chance

to developer the facts and law either on appeal or in the

trial court and without a chance to address the new

factual or legal basis for dismissal which the Tenth

Circuit decided determined dismissal.

ARGUMENT

REASONS FOR GRANTING THE WRIT

The Tenth Circuit's holding that a private party only

acts under color of state law if they are engaged in a

conspiracy with a state official conflicts with years of

established case law from this Court under Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)

Appendix A (Order affirming Dismissal), the 10" Cir

in upholding dismissal of the 1983 claim states:

It has been held that “an otherwise private person

acts ‘under color of" state law when engaged in a

conspiracy with state officials to deprive another of

federal rights.” Tower v. Glover. 467 U.S. 914, 920

(1984). However, “[wjhen a plaintiff in a § 1983

action attempts to assert the necessary ‘state action’

by implicating state .. . judges in a conspiracy with

private defendants, mere conclusory allegations

with no supporting factual averments are

insufficient; the pleadings must specifically present

facts tending to show agreement and concerted

action. Sooner Prods. Co. v. McBride, 708 F.2d

510. 512 (10th Cir. 1983)

Order at 7-8.

The Order then notes that the “amended complaint

contains extensive allegations” but failed to allege a

conspiracty/meeting fo the minds between the state court

judge and BYU and its attorneys. See id.

Despite the cited case law, Petitioner never alleged

BYU, its attorney's or any other conspired with Judge

Howard on anything whatsoever. Neither was such a

conspiracy found to exist by the Utah District Court.

Petitioner did alleged that the defendant's acted concert

with the state judge to bring about the deprivation of

civil rights (see AC 9230) and that their acts were under

color of state law (see AC (229) and supported thosc

allegations with numerous factual details in the

Complaint.

rhe Tenth Circuit's holding that only if a conspiracy

took place ignores established precedent from this Court

such as Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922,

937 (1982) which holds that state action can be present

if the private pariy “has acted together with or has

obtained significant aid from state officials, or because

his conduct is otherwise chargeable to the State.” Id. At

937. Had the Tenth Circuit applied the appropriate case

law which does not limit a private party to be a state

actor only if engaged in a conspiracy with a state

official, the outcome would have been different.

Because the Tenth Circuit's holding that a private party

iS a State actor only when engaging in a conspiracy with

a State official directly conflicts with this court's

precedents in Lugar, dismissal must be vacated and an

opportunity to determine whether the conduct of BYU

and its attorneys, who conspired together and with

attorneys for the LDS church to obtain an arrest warrant

for Petitioner to keep him from entering Utah to conduct

discovery and attend his court hearings in those cases by

utilizing violating Rule 3.3(d) of the Utah Rules of

Professional conduct, who then by got the judge to sign

an Order requiring Petitioner to travel to Utah to attend a

hearing or face arrest, then obtaining that arrest warrant,

and at no time informing the judge that Petitioner did not

have the ability to travel to the hearing, in violation of

Rule 3.3(d) of the Utah Rules of Profession Conduct,

makes them state actors for 1983 purposes must be

allowed.

Tenth Circuit precedent already dictates that an attorney

who violates Rule 3.3(d) of professional conduct and

injures another party and violates their civil rights in the

process is a state actor and their conduct is actionable

under 1983. See Snell v. Tunnell, 920 F.2d 673 (1990).

In Snell operators of a foster care home had their

children removed from their custody via an ex parte

proceeding initiated by a state social worker agency. The

State agency violated Oklahoma Rules of Professional

Conduct 3.3(d) (which mirror those of Utah) in

presenting false information to ...the state court judge in

the ex parte proceeding. Further, the Tenth Circuit noted

the near certain violation of Oklahoma Rules of

Professional Conduct 3.3(d) when the agency failed to

make adequate disclosure to the state judge in the ex

parte proceeding which generated the Order to remove

the foster children from the custody of Mr. & Mrs. Snell.

See Snell at 694,

The Tenth Circuit found no bar to the Snell's §1983 suit

resulting from the state agency happening to violate a

professional rule of conduct in the process of their

violation of Mr. & Mrs. Snell's rights.

Where §1983 has been violated, any Rules of

Professional Conduct can not save the infringer from

accountability for that violation. There is no exception in

the language of §1983 that simply because the violator

broke a rule of professional conduct in the course of

violating 1983, they are somehow relieved from

liability. The elements of of 1983 are well established.

Further, under the federal preemption clause, the state

rules of professional conduct can not preempt suit under

the Constitution.

Also, the outcome in Snell was independent of the

validity of invalidity of the state judge Order removing

the foster children from custody of Mr. & Mrs. Snell.

Snell was dependent on the unlawful means by which

the Order was obtained and resulting injury. This is

pointed out because the District Court gave great

deference to the state order and stating that because it

was issued by a judge it somehow removed liability

from the defendants. That the Order happened to be

issued and signed by a state judge was of no

consequence in Snell and can neither be in this appeal.

Thus Tenth Circuit case law, which was raised on

Appeal, supports the 1983 claim.

As for the ability to act in concert with a state court

judge and be considered la state actor, case law from

other Circuits adequately supports that premise. A recent

Sth Circuit case similar in many ways to the instant

appeal shows that private attorneys who act in concert

with a state judge to bring about a deprivation of federal

rights allows the private attorneys to held as state actors

for §1983 purposes.

In Ballard v. Wall, 413 F.3d 510 (Sth Cir. 2005) the

defendant Wall obtained a judgment against Ballard in

state court. Wall then went to the state court judge and

obtained a hearing date for a supplemental proceeding to

collect the judgment. Ballard showed up 2 hours late for

the hearing and was ordered to jail by the judge until

bond had been posted or until the next hearing date.

Ballard was then jailed until he posted bond.

Ballard then brought suit against the judge and attorneys

for Wall. While the judge received qualified immunity

from suit, the 5th Circuit found that the private attorneys

could be sued under §1983 because they acted in concert

with the judge to bring about a deprivation of Ballard’s

rights in confining him to jail until he posted bail.

For 1983 purposes, the 5th Circuit analyzed whether the

private attorneys were state actors under the Lugar test

and found that the private attorneys could be held state

actors.

In the instant case, the first factor under Lugar is

satisfied because Ballard proffers allegations that “a

person for whom the State is responsible" caused the

constitutional deprivation. Lugar, 457 U.S. at 937, 102

S.Ct. 2744. Ballard makes various assertions in his

complaint which, if taken as true, indicate that Judge

Lambert exceeded the scope of her jurisdiction and

abused her authority by imprisoning him until he paid

his debt. Ballard at 519.

In the instant appeal. the state judge is “a person for

-—

whom the State is responsible". Additionally, allegations

that the state judge exceeded their authority are present,

or can be amended to include those allegations.

For instance the judge relied on Utah R. Civ. Proc. 69

for the authority to hold the hearing and jail Petitioner if

he did not appear where that ruled does not exist.

The state judge (Howard) also was aware that BYU

violated Utah Rules of Professional Conduct 3.3(d) in an

ex parte proceeding and refused to rescind the bench

warrant when finding out BYU intentionally withheld

that Petitioner could not afford to travel to Utah for the

hearing, which guaranteed them the arrest warrant.

Worse yet, the entire basis for the hearing was to enforce

a judgment against Petitioner in favor of BYU and that

judgment was in every sense of the word ludicrous.

Judge Howard awarded BYU $2751 in sanctions after

BYU improperly removed their state case to federal

court, but the state case had no federal cause of action.

That was a direct and open and obvious violation of 28

U.S.C. §1446. Then Petitioner filed the necessary motion

to remand almost immediately, but the federal court,

without explanation refused to remand it to state court

for one year, until from out of nowhere they remanded

it. Petitioner complained to Judge Howard about it and

defendant Howard imposed the $2751 sanction saying

Petitioner’s motion for sanctions for improper removal

was meritless.

The judge’s improper conduct combined with BYU’s

misrepresentation and deceit on the court that Utah R.

Civ. Proc. 69 provided the authority for their hearing

motion, and BYU violating Utah Rules of Professional

Conduct 3.3(d) in not informing the judge about

Petitioner’s inability to travel to Utah for the hearing,

which in essence allowed the judge to issue the order

which would lead to the deprivation of Petitioner’s

rights at issue in the case, should suffice to find state

action on the part of the private defendants.

As in Ballard the matter of state actorship and liability

was decided independent of whether the private actors

violated any rules of professional conduct. What

mattered was that they violated a federal right and acted

under color of state law.

Petitioner's 1983 claim has sufficient legal and factual

support and due process of law should allow for it to be

remanded for further proceedings.

Bb.

The Tenth Circuit's dismissal of Petitioner's 1983

claim under this Court's recent standard set forth in

Bell Atlantic Corporation v. William Twombly 127

S.Ct. 1955 (2007) was incorrect where Petitioner's 63

page Complaint contained detailed allegations to

support the 1983 claim and the only infirmity was the

Tenth Circuit's misunderstanding that a private

party is only a a state actor if acting in a conspiracy

with a state official

Likewise, the Tenth Circuit's invocation of this Court's

recent ruling in Twombly must be overturned or vacated

because the Complaint is factually sound and the basis

for dismissal was the Tenth Circuit's misunderstanding

of when a private party can be considered a state actor

under 1983.

II.

Due Process of Law is Violated where a trivial

Amendment of the Complaint would cure an alleged

deficiency.

The Tenth Circuit denied one of the claims against Judge

Howard of the Utah State Court because Petitioner

sought a writ of mandamus against the state court judge

and a federal court can not issue such writs. (Tenth

Circuit Order at 5 — Appendix A) As shown below that

conflicts with this Court's precedents.

However, had Petitioner been allowed to amend the

complaint, he could have changed the relief sought from

a writ of mandamus to injunctive relief. Thus

Petitioner's case could have proceeded if he had been

given a chance to simply change the 3 words of the

Complaint in the relief sought section.

Opportunity to amend would be appropriate as the

complaint was dismissed in the lower court without any

chance for briefing, and the Tenth Circuit set aside the

basis for dismissal of the lower court and decided the

entire matter for the first time on appeal.

Fed. R. Civ. Proc. 15(a) states leave to amend should be

liberally given where justice so requires and here due

process of law has suffered by the Tenth Circuit denying

a chance to amend the complaint to cure the deficiency.

The Tenth Circuit holding that a federal court can

not issue a writ of mandamus to a state court judges

is contradicted by this Court's case law

With respect to the claim a writ of mandate can not be

directed to a state court judge (Opinion at 5), that

holding should be re-examined in light of Pulliam v.

Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565

(1984).

For the most part, injunctive relief against a judge

raises concerns different from those addressed by

the protection of judges from damages awards.

The limitations already imposed by the

requirements for obtaining equitable relief against

any defendant a showing of an inadequate remedy

at law and of a serious risk of irreparable harm,

Beacon Theatres, Inc. v. Westover, 359 U.S. 500,

506-507, 79 S.Ct. 948, 954-955, 3 L.Ed.2d 988

(1959) severely curtail the risk that judges will be

harassed and their independence compromised by

the threat of having to defend themselves against

suits by disgruntled litigants. Similar limitations

serve to prevent harassment of judges through use

of the writ of mandamus. Because mandamus has

"the unfortunate consequence of making the

judge a litigant, obliged to obtain personal

counsel or to leave his defense to one of the

litigants before him," the Court has stressed that it

should be "reserved for really extraordinary

causes." Ex parte Fahey, 332 U.S. 258, 260, 67

S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947).

Occasionally, however, there are “really

extraordinary causes" and, in such cases, there

has been no suggestion that judicial immunity

prevents the supervising court from issuing the

writ.

See Pulliam v. Allen, 466 U.S. 522, 538.

Because this court states that a writ of mandamus can be

issued to a State court judge, and because the Tenth

Circuit holds that under no circumstance can a writ of

mandamus be issued, the Petitioner for Writ of Certiorari

should issue.

Further, while a writ of mandamus might have the

consequence of the judge obtaining counsel, Petitioner

sees little difference whether injunctive relief or

mandamus is sought to accomplish the same task, as the

judge would still obtain counsel to defend the claim, thus

there functionally appears to be no difference between

seeking either injunctive relief or mandamus to address

the wrong to the Petitioner.

Il.

28 U.S.C 455 Implicitly Mandates that the actual

Judge or Magistrate must rule on a motion for their

recusal

28 U.S.C 455(a) states:

(a) Any justice, judge, or magistrate judge of the United

States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.

(emphasis added).

In the instant matter, Petitioner filed a motion to recuse

the Magistrate primarily on the grounds that (1) he had

entered into a contractual agreement with Brigham

Young University, evidence of which was shown to the

District court of Utah with a printout from the Brigham

Young University showing that he had entered into a

contractual agreement with them and (2) that the

Magistrate, as part of his religious practices as a member

of the LDS church, had attended an LDS temple and

“taken an oath to defend church” and they are also

obligated to take a proactive role in promoting that

church and its interests, and that BYU was an LDS

institution. Also, the LDS church was a potential

litigant to the case pending discovery.

Only the Magistrate himself would be in the position to

understand and gage the effect of his religious

convictions and teachings on his ability to make

detatched and impartial decisions. To allow another

judge who might be completely unfamiliar with the LDS

church and its teachings to make that decisions would go

against the words and intent of 28 USC 455.

Also, if the Magistrate reviews the motion it avoids

evidentiary issues which can be cumbersome for such a

motion especially in a case like this where a persons

religious beliefs or practices are difficult to prove, are

not a matter of public information, and generally persons

outside the religion are unaware of those beliefs and

practices.

Here the magistrate was in a position where his

discretion had major and dispositive impact on the

outcome of the case. For example, the magistrate held

that although BYU and its attorneys violated Utah Rule

of Professional Conduct 3.3(d) in obtaining the arrest

warrant for Petitioner, and although that misconduct

satisfied all elements of 42 U.S.C 1983, Petitioner's

recourse was with the state bar, and not the federal

courts. This in the face of 1983 and nowhere does 1983

care whether the violation came about by a violation of a

rule of professional conduct or otherwise. Simply

because BYU and its attorneys violated a rule of

professional conduct at the same time as violating

Petitioner's civil rights, acting in concert with a state

court judge can not free them from liability. Yet the

magistrate made a very favorable finding for BYU.

Another example, the claims under 1983, 1985 and

RICO were found in-actionable (incorrectly) under

Rooker Feldman because the magistrate made an

assumption, unsupported by the complaint, that

Petitioner had already exhausted his state court remedies

where the complaint (Appendix F Amended Complaint

451) stated “The referred to state case has not reached a

final adjudication for Rooker-Feldman purposes.”

Also, the claim against Governor Huntsman which

involve the magistrate’s church and its teachings and

control of the Utah Judiciary, were found to be in-

acuonable due to Eleventh Amendment immunity where

anyone having taken Constitutional Law, let alone a

chief federal magistrate would be perfectly aware that it

does not apply were prospective non-monetary relief is

sought.

Those findings were critical as had those findings not

come about, the case could have been briefed and the

law and facts of the case developed, which due process

of law requires.

Because the Tenth Circuit's holding that it is permissible

for a judge other than the one being sought to recuse

themself and decide whether disqualification is proper,

and because 28 U.S.C. 455 specifically states that the

judge or magistrate being asked to recuse themself

“shall disqualify himself’, which can only be done if the

judge or magistrate reviews the motion himself, reversal

of the Tenth Circuit's holding must be allowed.

IV.

An Opportunity to Show the Standing should have

been allowed where no Opportunity was allowed to

brief the matter or amend the complaint to show

standing was permitted in the lower court

In Utah 12 of 12 judges in the state judicial district

where BYU resides are LDS. 7 of 7 of the states Court

of Appeals are LDS. The State Supreme Court having

discretionary is 80% LDS (4 of 5). In Utah however, the

LDS church is only in the slight majority and about 51

% LDS. Petitioner plead, and neither the Federal

District Court of Court of Appeals denied that a

Separation of Church /State Problem existis in Utah.

Neither Court denied that Petitioner was injured by the

Separation of Church /State imablance in the state

judiciary.

The Disnct Court denied Petitioner's Cause of Action

which sought for prospective non-monetary relief in the

form of a writ to the Governor to take reasonable steps

to remedy the imbalance, on Eleventh Amendment

immunity grounds. On Appeal, the Tenth Circuit

agreed with Petitioner that the Eleventh Amendment did

not bar the Claim. For the first time on appeal, however,

the Tenth Circuit claimed that it was speculative that

Petitioner's relief sought would redress his injury,

because by the time the remedy was implemented,

Petitioner's state court cases would be over with.

The capable-of-repetition doctrine can be invoked in

cases where a constitutional deprivation has occurred

yet where redress for that deprivation can not be given

due to the length of time it takes for the courts to

adjudicate a matter. Where there is a "reasonable

showing that [a plaintiff] will again be subject to the

alleged illegality" the capable-of-repetition doctrine

applies. City of Los Angeles v. Lyons, 461 U.S. 95, 109

(1983) (citing DeFunis v. Odegaard, 416 U.S. 312, 319

(1974)).

In Murphy v. Hunt, 455 U.S. 478, 482 (1982) the

Supreme Court stated:

In Weinstein v. Bradford, 423 U.S. 147, 149 (1975)

(per curiam), we said that “in the absence of a class

action, the capable of repetition, yet evading review’

doctrine was limited to the situation where two

elements combined: (1) the challenged action was in

its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be

subjected to the same action again." Citing Elections

Bd. v. Socialist Workers Party, 440 U.S. 173, 187

(1979) .

See Murphy at 482 (per curiam).

If the capable of repetition doctrine is not applied,

correction of the church / state entanglement would be

beyond the reach of most every citizen of Utah. For

example, prior to being injured by an LDS church

related institution, seeking to correct the problem would

fail due to lack of injury. By the time a person is

injured, replacement of an LDS judge does not occur

immediately as a judge vacancy must first exist, then the

judicial nominating committee (who are appointed by

the governor) who makes binding judicial

recommendations must find and fill that vacancy. By

the time that vacancy though is filled the court case

would be completed (or it would be speculative that

would redress the injury).

In the present case, opportunity should have been

given for Petitioner to make some showing that he in

fact had standing. Opportunity to brief the Standing

issue was never permitted in the lower court and thus

an opportunity to amend the complaint to show

Standing was not allowed.

A. In the instant case, the Petitioner has had no

opportunity to make any showing at all with respect

the existence of future lawsuits against an LDS

Church related institution. This court's own records

should show a history of litigation between the

Petitioner and BYU and the LDS church. If the past is

any indication of the future there is_ the likelihood of

future litigation between the parties.

Petitioner can show on remand that BYU is in breach

of a settlement agreement/contract and that Petitioner

can file a state case arising out of that breach, which

appears to be continual up until 2010, up until 2016.

See Utah Code Ann. § 78-12-23 (2002) (setting statute

of limitations for breach of written contract claims at

six years). See also attached Declaration of Petitioner.

In the last 5 years there have been 4 new judges

assigned to the Fourth District court in Utah where

BYU resides. See Declaration of Petitioner.

Thus 8 years should be sufficient for the judicial

nominating committee to nominate at least one non-

LDS judge to that District. At least then there would

be one judge available to hear that case. Thus there is

in fact a reasonable likelihood that the relief sought can

in fact redress the injury. Importantly, this

demonstrates the need for fact finding and that

opportunity should be given. This Court should not

assume that those facts don’t exists without giving

some Opportunity to present them. Thus remand to the

district court would be the best manner to handle the

case to allow the facts and the law to be developed.

For these reasons, dismissal of the Separation of Church

/ State claim should be vacated and the capable of

repetition doctrine applied to the case.

Petitioner is in a unique position to adjudicate the church

/ state claim because he has a breach of contract case

against BY U which according to the state statute of

limitation law can be filed up until 2016. See

Declaration of Petitioner, submitted to the Court of

Appeal shown with Appendix H attached herein,

Petitioner showed in the Tenth Circuit that the state

judicial district where BYU resides a judicial vacancy

occurs and is filled once cach | 1/2 years. That being

the case by the year 2016 at least 1 non-LDS judge

could be appointed to that district which could then hear

that case. Obviously a motion to recuse would be filed

and a favorable outcome in this case would provide that

State court judge who is LDS ample basis to do so.

The claim against governor Huntsman is rejected on

lack of standing grounds. Opinion at 6-7. That there is

a violation of the Establishment Clause is not

contested. That there is an actionable injury resulting

from that violation is neither disputed. The sole issue

is that that relief sought is claimed to be “speculative”.

B. Taxpayer Standing The Supreme Court in Flast v.

Cohen, 392 U. S. 83 stated that in Establishment

Clause cases, which the claim involves, that the

standard Article III standing requirements of an (1)

injury (2) traceable to the defendant and (3) some form

of relief capable of being given. See Allen v. Wright,

468 U. S. 737, 751 (1984). Petitioner should have

taxpayer Standing in this case as a State taxpayer and

possibly as a federal taxpayer if any federal funds are

used to support the Utah Judicial system. Petitioner

would ask that the case be remanded to the lower

court to develop the facts and the law in this respect.

Also, an opportunity to amend the complaint to allege

the necessary facts would be proper as the entire issue

is raised for the first time by this court in its opinion

affirming dismissal. Certainly, if the outcome on this

claim hinges upon whether state taxpayer standing can

be invoked tn an analogous manner to Flast, the case is

not “patently obvious” that it does not state a claim for

relief.

C. Class Representation In Murphy v. Hunt, 455

U.S. 478, 482 (1982), a case where the capable-of-

repetition doctrine was denied, the Supreme Court also

indicated that had the petitioner sought to represent a

class of injured persons, the case would have been

actionable. See Id. at (“The question was no longer

live because even a favorable decision on it would not

have entitled Hunt to bail (redress of the injury]. For

the same reason, Hunt no longer had a legally

cognizable interest in the result in this case. He had not

prayed for damages nor had he sought to represent a

class of pretrial detainees.’’)(emphasis added).

Petitioner has had no opportunity to seek to represent a

class of litigants in a similar predicament in Utah

(obviously this would require obtaining counsel, which

could be done). Thus remand would be proper to

allow Petitioner to amend the complaint and be given

the opportunity to obtain counsel and represent a class

of similarly situated litigants in Utah.

Another possibility would be to join or with counsel

represent a type of revolving class, where ‘while

Petitioner's state court case might terminate prior to a

resolution in federal court, another litigant with a case

against a Church related institution could join that

class as a case arose. An opportunity to amend the

complaint along those lines should also be given, along

with the chance to show via discovery that such a class

would be viable in federal court.

Had opportunity to show Standing been given,

Petitioner could have showed he did have

standing. Thus the Tenth Circuit erred in assuming

Petitioner could not show he had standing on Appeal

and on these grounds the 10" Cir. Opinion affirming

dismissal must be vacated.

Standing can exist to redress a Separation of

Church / State violation in Utah, where a

Separation of Church / State violation is in fact

found to exist, where injury in fact is found to exist

resulting from that violation, but where because the

time required to correct the violation naturally

would take so much time that the person affected by

the violation could not benefit from that remedy,

making it impossible to redress that Separation of

Church / State violation?

Given the unique nature of the separation of church /

state violation of this case and the near impossibility

for any citizen to be able to have standing to correct

that violation some remedy should be fashioned to

allow standing.

Petitioner believes that a variation to the capable of

repetition, yet avoiding review would be appropriate

where in civil rights cases if the redress would benefit

society as a whole, then standing should be permitted.

Alternatively, where a violation is found to exist and

injury in fact present, as in this case, perhaps the

burden should shift to the party seeking to defeat

standing to show that the complaining party would not

beneifit in the future from the remedy sought.

¥.

The Tenth Circuit Circuit's dismissal of the 1985

claim ignores the plain language of 1985; the Facts of

the Complaint fully support a 1985 Claim

A. 42 U.S.C. $1985 provides:

If (1) two or more persons in any State or Territory (2)

conspire to deter, by (3) force, intimidation, or threat, (4)

any party or witness in any court of the United States

from attending such court, or from testifying to any

matter pending therein, freely, fully, and truthfully, or

(5) to injure such party or witness in his person or

property on account of his having so attended or

testified, or (6) to influence the verdict, presentment, or

indictment or any grand or petit juror in any such court,

or to injure such juror in his person or property on

account of any verdict, presentment, or indictment

lawfully assented to by him, or of his being or having

been such juror; or (7) if two or more persons (8)

conspire (9) for the purpose of impeding, hindering,

obstructing, or defeating, in any manner, the due course

of justice in any State or Territory, (10) with intent to

deny to any citizen the equal protection of the laws, or

(11) to injure him or his property for lawfully enforcing,

or attempting to enforce, the right of any person, or class

of persons, to the equal protection of the laws. . . the

party so injured or deprived may have an action for the

recovery or damages occasioned by such injury or

deprivation, against any one or more of the conspirators.

(numbering added) See 42 U.S.C. 19S5(2).

1. The necessary elements are satisfied by the facts of

the complaint.

Petitioner asks the court to examine the seriousness of

the misconduct of the defendants The Amended

Complaint adequately alleges that (1) two or more of the

defendant’s [AC at 986, 88, 116] (2) conspired [Id.} (3)

by force, intimidation, or threat [AC at {{9[69, 87] (4) any

party or witness in any court of the United States from

attending such court, or from testifying to | any matter

pending therein, freely, fully, and truthfully [Petitioner is

in fact a party to the federal and state court cases: see

also AC at $969, 87, {123 which shows that as a result of

the illegally obtained arrest warrant he could not give his

testimony in his deposition, or depose other witnesses

and otherwise attend any hearing within the state of

Utah]. Thus each of the elements are satisfied for

recovery under §1985.

That Petitioner was threatened goes without saying. Was

there a threat? Yes there was. If Petitioner had gone to

Utah for any court related proceeding he was under the

threat of arrest. That is a threat. Simply because they did

not openly verbally make the threat does not matter. The

threat was real and the threat was understood and the

defendants were aware that the threat would be

understood by Petitioner and force him to forego

hiscourt related proceedings in Utah as a result.

However, additional elements are also satisfied.

2. or (6) to influence the verdict [the actions of forcing

Petitioner to forego depositions and obtain the evidence

needed to win his case would in fact influence the

verdict the civil case against them] 3. (7) if two or more

persons (8) conspire (9) for the purpose of impeding,

hindering, obstructing, or defeating, in any manner, the

due course of justice in any State or Territory, [Utah is a

State, the purpose of defendants conspiring together to

obtain the unlawful arrest warrant was for the purpose of

impeding, hindering or defeating Petitioner in his court

cases against defendants; see AC J][85, 119, 254,117,

4123] (10) with intent to deny to any citizen the equal

protection of the laws [see AC 9985, 119, 254,117]

4. or (11) to injure him or his property for lawfully

enforcing, or attempting to enforce, the right of any

person, or class of persons, to the equal protection of the

laws [to put someone in jail based on an unlawful arrest

warrant is an injury, further it uses physical force and it

doesn’t matter whether it ts the defendants who use the

force or if they unlawfully persuade another to do it for

them, it is still an unlawful injury.

There are then four (4) separate basis which are satisfied

tor recovery under 1985 and that is significant. , Simply

because the conspiracy ended up with a judge issuing

an,unlawful Order obtained through fraud does not

provide a defense to any of the elements of §1985.

VI.

Each Element for Claim under RICO was satisfied in

the case at bar

A. 18 U.S.C. §1503 1s applicable.

The District Court alleges that §1503 is inapplicable

(R&R at 22) because Petitioner is not a juror, or officer

of the court. §1503 provides:

(a) Whoever cormptly, or by threats or force, or by any

threatening letter or Communication, endeavors to

influence, intimidate, or impede any grand or petit juror,

or officer in or of any court of the United States, or

officer who may be serving ..., or injures any such

officer, magistrate judge, or other committing magistrate

in his person or property on account of the performance

of his official duties, corruptly or by threats or force, or

by any threatening letter or communication, influences,

obstructs, or impedes, or endeavors to influence,

obstruct, or impede, the due administration of justice,

shall be punished as provided in subsection (b).

.L.[emphasis added]

Petitioner does not have to be serving as a juror or

magistrate etc. As the underlined text indicates, if

defendants "corn|ptly or by threats or force. ..

influences, obstructs or impedes or endeavors to

influence the due administration of justice"

Did defendants corruptly or by threats or force

influence, obstruct, or impede or endeavor to do so? It is

a resounding yg that they did. There conduct as alleged

is in fact corrupt under the common definition of the ’

The definition, one of many, all of which are similar for

the word "corrupt" states:

corrupt Pronunciation: ks- - rsp: Function: adjective :

having an unlawful or evil motive; especially :

characterized by improper and usually unlawful conduct

intended to secure a benefit for oneself or another (as by

taking or giving bribes) —cor-r-upt-ly adjective —

(:O1-I*11pt-11€SS noun Source: Merriam- Webster's

Merriam-Webster, Inc. See

http: lldictionary.reference.com/browse/corrupt word.

(Corrupt is not limited to taking of money etc. and can

include all conduct with unlawful motive). They did in

fact, by their corruptly obtaining of the arrest warrant

influence and obstruct and impede Petitioner from fully

participating in, and prosecuting his federal and court

cases. However, Congress uses the disjunctive "or"

when drafting §1503. So after the word "corruptly"

comes the word "or", and then Congress states that if by

"threats" or "force" “influences, obstructs, or impedes,

or endeavors to influence, obstruct, or impede, the due

administration of justice” shall be liable under 1503.

Certainly the threat of arrest, which was certain given a

bench warrant, when Petitioner traveled to Utah for a

court proceeding can be considered a threat under 1503.

Whether liability if found due to the corrupt manner in

which the arrest warrant was obtained or otherwise, the

elements are satisfied for liability under 1503, or at least

discovery or the opportunity to amend the complaint ts

merited.

VII.

Due Process of Law requires a Reply Brief, Oral

Argument Where No Briefing was permitted in the

District Court and the Court of Appeals Fashioned

new reasons for dismissal for the first time on appeal

Due to the many factual errors, along with the Tenth

Circuit's assumption that Petitioner could not show

Article III standing had the case been remanded to the

District Court, oral argument and a Reply Brief would

have been helpful to the due administration of justice

and Petitioner asks that the case be remanded to the

Tenth Circuit to allow for the submission of a Reply

Brief and to be heard at oral argument by the Circuit

Panel in the case. Petitioner sole request of to be heard

by an impartial tribunal and a Reply Brief would be

helpful for that.

In addition to the legal mistakes previously mentioned,

the Tenth Circuit found for the first time on appeal (or

certainly implied he was) that Petitioner was seeking

monetary damages from judge Howard. See Order of

Appendix A at 5. Also, it found that the arrest warrant

was rescinded in August 2005 (Appendix A at 2) where

the Complaint stated the fact Judge Howard refused to

rescind the arrest warrant in February 2006 (See

Appendix F, Amended Complaint 4105). Additionally

the Order of Appendix A completely fails to address

whether the defendant's violated Rule 3.3(d) of the Utah

Rules of Professional Conduct in seeking ex parte the

hearing and arrest warrant without informing the judge

of the materially critical information that Petitioner was

unable to attend that hearing, which was a violation of

Rule 3.3(d).

Thus a reply brief and oral argument would have been

helpful to Petitioner in the case in bringing about a just

outcome.

CONCLUSION & RELIEF SOUGHT

The relief sought, which would be in the interest of

justice and the due administration of law, would be for

the case to be remanded back to the Circuit Court or

District Court to allow for the development of the law

and facts of the case which really never was permitted

which resulted in faulty facts and law being applied.

Opportunity to amend the Complaint to show Standing

for the Separation of Church / State claim should be

allowed and to remedy any other defects which are can

be corrected.

Also, a chance to submit a reply breif would be

workable and a chance to be heard at oral argument by

the Tenth Circuit would be helpful.

Respectfully Submitted,

Aaron Raiser

Appendix A - United States Court of Appeals for

the Tenth Circuit Order affirming Dissmisal.

United States Court of Appeals,

Tenth Circuit.

Aaron RAISER

Plaintiff-Appellant,

Vv.

DAVID M. KONO; DANIEL L.

STEELE; FRED HOWARD, Official

capacity; BENNETT TUELLER

JOHNSON & DEERE; BRIGHAM

YOUNG UNIVERSITY; JON

HUNTSMAN, official capacity,

No. 06-4243

(D.C. No. 2:06-CV-256-TC)

(D. Utah)

July 5, 2007

Before McCONNELL, PORFILIO, and BALDOCK.,

Circuit Judges.

ORDER AND JUDGMENT [FN*]

FN*. After examining the briefs and appellate record, this

pancl has determined unanimously to grant the parties’

request for a decision on the briefs without oral argument.

See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the

citation of orders and judgments: nevertheless, an order

and judgment may be cited under the terms and conditions

of 10th Cir. R. 36.3. It may be cited, however, for its

persuasive value consistent with Fed. R.App. P. 32.1 and

10th Cir. R. 32.1.

Plaintiff-appellant Aaron Raiser appeals the district

court’s sua sponte dismissal of his First Amended

Complaint, which attempted to set forth civil rights and

RICO claims, and its denial of his motion for recusal of a

magistrate judge. Because we conclude that it is patently

obvious that Mr. Raiser could not prevail on the facts and

theories alleged, we affirm.

This case has its origin in a Utah state-court case filed by

Mr. Raiser against Brigham Young University (B\ J),

which was represented by David M. Kono and Daniel L.

Steele, of the law firm of Bennett Tueller Johnson &

Deere.

In that case, defendant Judge Fred Howard issued a civil

bench warrant on July 19, 2005, when Mr. Raiser failed to

appear for a supplemental hearing noticed by defendants

“to identify property and to apply the property toward the

Satisfaction” of an attorney-fee award entered as a

sanction. See Utah R. Civ. P. 64(c)(2). FN! The bench

warrant was stricken on August 19, 2005.

|FN1] Mr. Raiser asserts error in defendants’ state-court

citation to repealed Utah R. Civ. P. 69, which addressed

proceedings supplemental to the execution of a judgment

until November 1, 2004. The erroneous citation did not

affect Mr. Raiser’s rights in any way and does not

constitute grounds for reversal.

Mr. Raiser then filed this case in federal district court,

alleging that BYU, its lawyers, and the law firm conspired

with Judge Howard to violate his constitutional rights to

interstate travel, access to federal and state courts in

Utah,due process, and equal protection of the laws. He

claimed that the attorneys were aware that he was

homeless and could not afford to appear for the Rule

64(c)(2) hearing, but they did not inform Judge Howard

of this fact.

And even after Mr. Raiser advised the court of his

financial situation, Judge Howard did not retract the

\ warrant. According to Mr. Raiser’s Amended Complaint,

BYU, the attorneys, the law firm, and Judge Howard

violated the civil-rights provisions of 42 U.S.C. §§ 1983

and 1985 and the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961-1968.

Also, he alleged that B YU,the attorneys, and the law firm

committed common-law extortion and fraud on the court.

Finally, Mr. Raiser claimed that defendant Governor Jon

Huntsman and Judge Howard should be held liable under

§ 1983 for religious bias in the selection process for

filling vacancies in the Utah judiciary.

The district court sua sponte dismissed Mr. Raiser’s

claims for failure to state a claim on which relief can be

granted.FN2 It also denied his motion under 28 U.S.C. §

455 for recusal of the magistrate judge. On appeal, Mr.

Raiser argues that his complaint was sufficient in all

respects and takes issue with the denial of recusal.

[FN2] Several actions on the part of Mr. Raiser and the

district court preceded the dismissal. First, the Chiet

Judge of the United States District Court for the District

of Utah placed appellant Aaron Raiser on that court's

restricted filer list. Pursuant to the restriction order, a

magistrate judge determined that Mr. Raiser’s initial

complaint was deficient and recommended that the court

dismiss the action.

Mr. Raiser filed an untimely objection to the magistrate

judge’s report. The district court conducted a de novo

review of the amended complaint and dismissed the case,

mentioning the restriction order and citing 28 U.S.C.§

1915(e)(2)(B) (providing for dismissal of deficient

complaint filed by a pro se litigant proceeding in forma

pauperis) and McKinney v. State of Okla. Dep't of

Human Servs., 925 F.2d 363, 365 (10th Cir. 1991)

(discussing the court’s inherent power to enter a sua

sponte dismissal of a patently deficient complaint).

Today, this court reverses and remands the Chief Judge's

order for a procedural irregularity. See In re Raiser, No.

06-4116 (10th Cir. July 5, 2007). And, because Mr. Raiser

was not proceeding in forma pauperis in the district court,

28 U.S.C. § 1915(e)(2)(B) is inapplicable. Accordingly,

this court reviews the district court’s dismissal under the

theory discussed in McKinney. See Mann v. Boatwright,

477 F.3d 1140, 1145 (10th Cir. 2007) (stating that we may

affirm the judgment below “on any grounds for which

there is a record sufficient to permit conclusions of law,

even grounds not relied upon by the district court)

(quotation omitted).

Dismissals under Rule 12(b)(6) typically follow a motion

to dismiss, which gives the plainuff notice and an

opportunity to amend his complaint. But in this circuit.

“sua sponte dismissal of a meritless complaint that cannot

be salvaged by amendment comports with due process

and does not infringe the right of access to the courts.”

Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). A

sua sponte dismissal under Rule 12(b)(6) is not reversible

error when: (1) it is “patently obvious that the plainuff

could not prevail on the facts alleged”; and (2) “allowing

[the plaintiff] an opportunity to amend his complaint

would be futile.” McKinney v. State of Okla. Dep't of

Human Servs., 925 F.2d 363, 365 (10th Cir. 1991)

(quotation omitted); see also Andrews v. Heaton, 483

F.3d 1070, 1074 n.2 (10th Cir. 2007).

When ruling on dismissal, “‘a judge must accept as true all

of the factual allegations contained in the complaint.”

Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). A

complaint “does not need detailed factual allegations,” but

“a plainuff's obligation to provide the grounds of his

entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of a cause of

action’s elements will not do. Factual allegations must be

enough to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965

(2007) (quotation, alteration, and citation omitted).

This court reviews de novo a district court’s dismissal for

failure to state a claim upon which relief can be granted.

Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir.

2002). Based on our de novo review, we conclude that it

was appropriate to dismiss Mr. Raiser’s all claims against

all defendants.

Claims against Judge Howard

To the extent that Mr. Raiser scecks monetary damages

from Judge Howard for actions taken in his judicial

capacity, the claims were properly dismissed under the

doctrine of absolute judicial immunity. See Mireles v.

Waco, 502 U.S. 9, 11 (1991) (per curiam). And “[f]ederal

courts have no authority to issue a writ of mandamus to a

State judge.” Olson v. Hart, 965 F.2d 940, 942 (10th Cir.

1992). Accordingly, Mr. Raiser’s request for a writ of

mandamus requiring Judge Howard to rescind the bench

warrant and fee award was not actionable. His request for

a declaratory judgment against Judge Howard concerning

the constitutionality of Utah’s debt-collection procedures

likewise is unavailing. ““The Eleventh Amendment does

not permit judgments against state officers declaring that

they violated federal law in the past.” Johns v. Stewart, 57

F.3d It is appropriate to repeat our previous comment that

“merely because [a judge] belongs to and contributes to

the Mormon Church would never be enough to disqualify

him.” In re McCarthey, 368 F.3d 1266, 1270 (10th Cir.

2004); see also Singer v. Wadman, 745 F.2d 606, 608

(10th Cir. 1984) (affirming denial of disqualification of

judge, who was a Mormon, in case which plaintiff claims

was ‘a Challenge to the theocratic power structure of

Utah”). 1544, 1553 (10th Cir. 1995) (quotation omitted).

The district court did not err in dismissing the claims

against Judge Howard.

Claims against Governor Huntsman

Mr. Raiser asserts that Governor Huntsman has violated

his constitutional rights by exercising the power to

appoint members of state judicial-selection committees in

a way that results in a State judiciary composed

disproportionately of judges belonging to the Church of

Jesus Christ of Latter-day Saints (Church).

He seeks a writ of mandamus requiring the Governor to

instruct members of the committees to disregard

candidates’ religious affiliation, while at the same time

making progress toward decreasing the number of Church

members. He alleges that, in lawsuits he files against

Church-related entities, Church-member judges will be

biased against him.

Any potential future harm that may befall Mr. Raiser from

the Utah judicial-selection procedures is too speculative to

fulfill the requirement of Article III of the United States

Constitution that a case present a “case or controversy”

between the individually named plaintiff and defendant.

The Supreme Court has recognized that claims predicated

upon such speculative contingencies afford no basis for

finding the existence of a continuing controversy. See

Rizzo v. Goode, 423 U.S. 362, 371-73 (1976). The federal

courts lack jurisdiction to consider Mr. Raiser’s claim and

therefore dismissal was appropriate.

Claims against BYU and its attorneys

42 U.S.C. § 1983

As a basis for his § 1983 civil-rights claim, Mr. Raiser

argues that BYU and its attorneys were acting under the

color of state law because they engaged in concerted

action with Judge Howard. It has been held that “‘an

otherwise private person acts ‘under color of’ state law

when engaged in a conspiracy with state officials to

deprive another of federal rights.” Tower v. Glover, 467

U.S. 914, 920 (1984). However, “[w]hen a plaintiff in a §

1983 action attempts to assert the necessary “state action’

by implicating state .. . judges in a conspiracy with

private defendants, mere conclusory allegations with no

supporting factual averments are insufficient; the

pleadings must specifically present facts tending to show

agreement and concerted action.” Sooner Prods. Co. v.

McBride, 708 F.2d 510, 512 (10th Cir. 1983). This

‘standard is even stricter where the state officials

allegedly involved in the conspiracy are immune from

suit, as [is] the state court judge[] here.” Id.

Mr. Raiser’s amended complaint contains extensive

allegations, but he does not present any facts establishing

an agreement or meeting of the minds between BYU, its

attorneys, and the state actors to deprive him of any

federal rights. Thus, he failed to state a § 1983 claim. See

id.; cf. Bell Atl. Corp., 127 S. Ct. at 1965, 1974 (holding

that a complaint under § | of the Sherman Act is subject

to dismissal for failure to state a claim if it does not

provide “enough fact to raise a reasonable expectation

that discovery will reveal evidence of illegal agreement”

and stating, “we do not require heightened fact pleading

of specifics, but only enough facts to state a claim to relief

that is plausible on its face. Because the plaintiffs here

have not nudged their claims across the line from

conceivable to plausible, their complaint must be

dismissed’). The district court did not err in dismissing

the § 1983 claims against BYU and its attorneys.

4? U.S.C. § 1985 and RICO

Mr. Raiser also alleges that BYU and its attorneys

violated 42 U.S.C. § 1985 and RICO. Specifically, he

argues that the bench warrant was traceable to their

conspiracy to prevent him from tending to his lawsuits in

Utah federal and state courts.

A deterrence claim under § 1985 arises when:

[T]wo or more persons in any State or Territory conspire

to deter, by force, intimidation, or threat, any party or

witness in any court of the United States from attending

such court, or from testifying to any matter pending

therein, freely, fully, and truthfully, or ... conspire for the

purpose of impeding, hindering, obstructing, or defeating,

in any manner, the due course of justice in any State or

Territory, with intent to deny to any citizen the equal

protection of the laws. ... § 1985(2). But “legal claims

possessing a reasonable basis in law and fact simply do

not constitute the “force or intimidation’ necessary to

satisfy § 1985(2).” Timmerman v. U.S. Benk, N.A., 483

F.3d 1106, 1124 (10th Cir. 2007). The issuance of the

bench warrant was a natural consequence of Mr. Raiser’s

failure to appear for the enforcement hearing. Defendants’

actions in obtaining an award of attorneys’ fees, setting an

enforcement hearing, failing to inform the court of Mr.

Raiser’s financial status, seeking a bench warrant, and

making a settlement offer cannot support a § 1985 claim.

Mr. Lawrence alleged that BYU and its attorneys violated

18 U.S.C. § 1503 (obstructing justice by trying to

influence a juror or officer of the court) as part of his

RICO claim. For the same reasons discussed above, Mr.

Raiser’s allegations do not describe conduct constituting

the obstruction of justice. The RICO claim is meritless

and was subject to dismissal.

Common law extortion and fraud upon the court Mr.

Raiser alleges that the same acts of these defendants also

make them liable under common-law extortion and fraud-

on-the-court theories. Generally, common-law extortion

by a private person “is limited to obtaining property by

threatening to inflict harm.” Rael v. Sullivan, 918 F.2d

874, 876 n.1 (10th Cir. 1990) (quotation omitted). And

this court has explained that “only the most egregious

misconduct, such as bribery of a judge or members of a

jury, or the fabrication of evidence by a party in which an

attorney is implicated will constitute a fraud on the court.

Less egregious misconduct, such as nondisclosure to the

court of facts allegedly pertinent to the matter before it,

will not ordinarily rise to the level of fraud on the court.”

United States v. Buck, 281 F.3d 1336, 1342 (10th Cir.

2002) (quoting Weese v. Schukman, 98 F.3d 542, 552-53

(10th Cir. 1996)) (further quotation omitted).

Taken as a whole, the allegations in the amended

complaint fall far short of asserting cognizable extortion

or fraud-on-the-court claims. These claims, too, were

properly dismissed.

IIT.

Finally, Mr. Raiser argues that the district court

wrongfully denied his motion to recuse the magistrate

judge because the applicable statutory provision states

that “a judicial official “shall disqualify himself in any

proceeding in which his impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a) (emphasis supplied). Mr.

Raiser asserts that the provision’s wording requires the

magistrate judge, not the district court, to rule on his

motion. Having reviewed the district court's decision for

an abuse of discretion, United States v. Mendoza, 468

F.3d 1256, 1262 (10th Cir. 2006), we see no error in

either the district court’s procedure or its determination.

[V.

The judgment of the district court is AFFIRMED. The

Motion for Leave to File Appellees’ Brief received from

BYU, its attorneys, and their law firm is GRANTED. Mr.

Raiser’s renewed Motion to Strike Entry of Appearance

and Motion to Present Oral Argument are DENIED.

Entered for the Court

John C. Porfilio

Circuit Judge

Appendix B - Order On Rehearing

United States Court of Appeals,

Tenth Circuit.

Aaron RAISER

Plaintiff-Appellant,

DAVID M. KONO; DANIEL L.

STEELE; FRED HOWARD, official

capacity; BENNETT TUELLER

JOHNSON & DEERE; BRIGHAM

YOUNG UNIVERSITY: JON

HUNTSMAN, official capacity,

No. 06-4243

(D.C. No. 2:06-C V-256-TC)

(D. Utah)

Order Denying Rehearing

August 6, 2007

Before McCONNELL, PORFILIO, and BALDOCK,

Circuit Judges.

Appellant’s Petition for Rehearing is denied.

Entered For the Court

Elizabeth A. Shumaker, Clerk

By: s/_

Deputy Court Clerk

Appendix C - Order Dismissing Case — United States

Federal Court District of Utah

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF UTAH CENTRAL DIVISION

AARON RAISER,

Plaintiff,

VS.

DAVID M. KONO, et al..

Defendants.

Case No. 2:06-CV-256 TC

ORDER

AND MEMORANDUM DECISION

This matter is before the court on the question of whether

pro se Plaintiff Aaron Raiser’s March 28, 2006 Complaint

has merit. The matter was referred to the United States

Magistrate Judge Samuel Alba. The referral order

directed the magistrate judge to “review this case to

determine whether the action is meritorious, duplicative or

frivolous and therefore subject to dismissal pursuant to

filing restrictions imposed on Mr. Raiser by an order

entered by Chief Judge Dee Benson on April 14, 2006.”

(Dkt # 12.)

Judge Alba issued a Report and Recommendation (R&R)

(Dkt # 15) in which he (1) concluded that Plainuff’s case

lacks merit and (2) recommended dismissal of Plaintiff's

Complaint. Mr. Raiser filed an untimely objection (Dkt #

34) to the Report and Recommendation. FN1 He also filed

a First Amended Complaint, which was not reviewed by

Judge Alba and is not the subject of the R&R.

FNIi Mr. Raiser filed a Motion for Extension of Time and

a Second Motion for Extension of Time to object to the

R&R. Those motions are granted. The court has

considered Mr. Raiser’s objection (incorrectly styled as

“Response to OSC’”’).

After Judge Alba issued his R&R, Mr. Raiser filed a

Motion for 28 U.S.C. § 455 Recusal of Judge Alba. Mr.

Raiser also filed a Motion for 28 U.S.C. § 455 Recusal of

Chief Judge Dee Benson, and a “Motion to Stay

Proceedings Pending Appellate Review of 2006mc00382”

(in which he requests a stay pending appellate review of

the Judge Benson Order quoted in the referral order).

Mr. Raiser’s Motion for 28 U.S.C. § 455 Recusal of Chief

Judge Dee Benson and Motion to Stay Mr. Raiser bases

his motion to recuse on Judge Benson's April 18, 2006

Order designating Mr. Raiser as a restricted filer, and the

language of the referral order that quoted

Judge Benson's April 2006 Order.

Because Mr. Raiser filed his Complaint on March 28,

2006 (before he became a restricted filer), Judge Benson’ s

Order does not directly apply. That is, contrary to Mr.

Raisers contention, Judge Benson does not have “final

Say in this case as to whether it goes forward.” (See Dkt #

24 at 2.) Moreover, the R&R does not conclude that

dismissal is appropriate because of Mr. Raiser’s restricted

filer status. Instead, it looks at the merits of the complaint

based on issues such as jurisdiction (e.g., the Rooker-

Feldman doctrine) and immunity doctrines.

Accordingly, Mr. Raiser’s Motion for Recusal of Judge

Benson is DENIED. For similar reasons, Mr. Raiser’s

“Motion to Stay Proceedings Pending Appellate Review

of 2006mc00382”

is DENIED.

Mr. Raiser’s Motion for Recusal of Magistrate Judge

Samuel Alba Mr. Raiser moves for recusal of Magistrate

Judge Samuel Alba under 28 U.S.C. § 455.

Section 455 provides, in pertinent part, that:

Any justice, judge, or magistrate judge of the United

States shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned. 28 U.S.C.

§ 455(a) (emphasis added).

Mr. Raiser bases his motion on three grounds: (1) “the

way he was treated by the secretary answering the phone

on about May 22, 2006[,] for [Magistrate Alba who

continually interrupted Plaintiff and then hung up on him

when he asked her if she would let him finish”

(Mr. Raiser “assumef{[s] that her attitude towards Plaintiff

is shared by Magistrate Alba’); (2) “the magistrate has

some type of contractual relationship with BYU [Brgham

Young University]”FN2 regarding hiring of interns, and

the alleged contract “shows possible bias and the potential

for such” because “the magistrate might not want to rule

against BY U as it might cause offense to the interns or to

BYU"; and (3) assuming, without evidence, that

Magistrate Judge Alba is a member of the Church of Jesus

Christ of Latter Day Saints (the LDS Church), such

alleged affiliation would necessarily bias Judge Alba in

favor of the LDS Church and its private educational

institution, Brigham Young University. (See Dkt #’s 20,

21.)

FN2 BYU is a Defendant.

Mr. Raiser’s motion for recusal is based on speculation.

“(C]jonclusions, rumors, beliefs and opinions are not

sufficient to form a basis for disqualification. [Plaintiff]

must state with required particularity the identifying facts

of time, place, persons, occasion and circumstances.”

Hinman v. Rogers, 831 F.3d 937, 939 (10th Cir. 1987)

(internal citation omitted). Mr. Raiser’s conclusory

statements regarding Magistrate Judge Alba’s alleged bias

are not backed up by any evidence of time, place, persons,

occasion or circumstances. Mr. Raiser does not provide

any valid basis for believing that Magistrate Judge Alba's

impartiality might reasonably be questioned, and so his

motion for recusal is DENIED.

Magistrate Judge Alba’s Report and Recommendation and

Mr. Raiser’s First Amended Complaint By filing his First

Amended Complaint in August 2006, Mr. Raiser

technically mooted Judge Alba’s R&R, which focused on

the now-superceded initial Complaint. But the court has

conducted a de novo review of the issues and finds that

Judge Alba’s conclusion regarding Mr. Raiser’s March

2006 Complaint is correct. Furthermore, Mr. Raiser’s First

Amended Complaint presents the same problems addressed

in Judge Alba’s R&R, and his amendments do not cure the

deficiencies identified in the R&R. See also 28 U.S.C. §

1915(e)(2)(B) (“the court shall dismiss the case at any time

if the court determines that .. . the action or appeal . . . fails

to state a claim

on which relief may be granted”); McKinney v. State of

Oklahoma Dep’t of Human Servs., 925 F.2d 363, 365 (10th

Cir. 1991) (allowing court to sua sponte dismiss pro se

litigant’s complaint for failure to state a claim when it is

“patently obvious that the plaintiff could not prevail on the

facts alleged, and allowing him an opportunity to amend his

complaint would be futile”). For substantially the same

reasons set forth in the R&R, the court finds that Mr.

Raiser’s First Amended Complaint lacks merit.

Accordingly, Mr. Raiser’s First Amended Complaint is

DISMISSED.

ORDER

For the reasons set forth above, the court orders as follows:

1. Mr. Raiser’s first Motion for Extension of Time (Dkt #

17) and second Motion for Extension of Time (Dkt # 29)

are GRANTED.

2. Mr. Raiser’s Motion for 28 U.S.C. § 455 Recusal of

Chief Judge Dee Benson (Dkt # 23) is DENIED.

3. Mr. Raiser’s Motion for 28 U.S.C. § 455 Recusal of

Magistrate Judge Samuel Alba (Dkt # 20) is DENIED.

4. Defendant Fred Howard's Motion to Dismiss (Dkt # 18)

is DENIED as MOOT.

5. Defendant Jon Huntsman’s Motion to Dismiss (Dkt # 35)

is DENIED as MOOT.

6. Mr. Raiser’s Motion to Stay Pending Appeal (Dkt # 25)

is DENIED.

7. The Clerk of the Court is directed to close the case.

DATED this 25th day of September, 2006.

BY THE COURT:

TENA CAMPBELL

United States District Judge

Appendix D - Report & Recommendation Dismissing

Case — United States Federal Court District of Utah

(Excerpts pertinent to case - to save space / cost etc.)

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF UTAH

AARON RAISER,

Plainuff,

DAVID M. KONO, DANIEL L.

STEELE, FRED HOWARD in his

official capacity, BENNETT

TUELLER JOHNSON & DEERE,

BRIGHAM YOUNG UNIVERSITY, and

JON HUNTSMAN in his Official

capacity,

Defendants.

Case No. 2:06-Cv-256 TC

REPORT AND RECOMMENDATION

BACKGROUND (AS DERIVED FROM

PLAINTIFF'S COMPLAINT, INCLUDING EXHIBITS)

The facts alleged in Plaintiff's complaint discuss three

Separate actions brought by Plaintiff against Brigham

Young University (hereafter referred to as "BY U"). First,

Plaintiff filed an action in Utah’s Fourth District Court in

August 2002, alleging common law torts against BYU. In

September 2002, BYU removed the case to federal court.

Plaintiff then filed a motion to have the case remanded to

state court. Nothing happened until approximately a year

later, when Plainuff’s motion was suddenly granted and

the case was remanded. After the case was remanded

to state court, Plaintiff filed a motion to amend the

complaint. |

BYU opposed the motion to amend. Plaintiff filed a

motion for sanctions. The state judge denied Plaintiff's

motion to amend and instead awarded BYU Rule Il

sanctions under the Utah Rule of Civil Procedure, to be

paid by Plaintiff, for $2,791. Plaintiff filed a motion to

reconsider. in response, the state judge ordered further

monetary sanctions against Plaintiff for filing

the motion to reconsider.

Second, Plaintiff is the plaintiff in a federal case

involving alleged civil rights violations. At a hearing in

April 2005, Plaintiff, who lives in California, appeared by

phone. United States District Judge Tena Campbell, the

judge in the case, ordered Plaintiff to conduct the

deposition of a BYU witness in person. Plaintiff told

Judge Campbell that he was homeless and barely had

enough money to survive from day to day.

The court still ordered Plaintiff to get to Utah within three

months for the deposition. Counsel for BYU who attended

that hearing are Defendants Daniel Stecie and David

Kono. Plaintiff claims they were present at the hearing

and fieard Plaintiff state that he was homeless and barely

had enough money to survive from day to day.

Plaintiff alleges that after Defendants Steele and Kono

heard of Plaintiff's financial circumstances, they went to

the state judge in the state case and prepared an “ex parte

motion and Order requiring Plaintiff to be in Utah in

Person on July 19, 2CO5.” Plaintiff alleges that “BYU

drafted that motion and Order and it specifically stated

that Plaintiff could be arrested if he did not show up," and

that BYU picked the date July 19, 2005, as

the hearing date. July 19, 2005, was the last day for

Plaintiff to do discovery in the federal case. Plaintiff

claims he had planned to depose the witnesses in the

federal case around July 5 to avoid the deadline date for

discovery. Plaintiff claims counsel for BYU picked July

19 as the hearing date to force Plaintiff to do the

depositions on the last day of discovery when

he had to be there or face arrest.

Plaintiff claims that because he only had money for one

trip to Utah, he was forced to postpone the depositions

until July 19. Plaintiff claims that counsel for BYU then

withdrew their witness's availability for July 19, and that

counsel for BYU also claimed privilege from disclosing

any information, which privilege was later ruled improper.

Plaintiff claims that he then had no time before the

discovery deadline to finish discovery.

Plaintiff did not attend the July 19 hearing and BYU asked

for the arrest warrant and it was issued. Plaintiff appealed

the issuance of the arrest warrant and the “near $3000

sanction.” Plaintiff claims that the Utah Court

of Appeals concluded that no final appealable order

existed.

Plaintiff was told, when he called the trial court, that the

warrant had been dropped because no one had shown up

at the latest hearing. Based on that information, Plaintiff

did not appeal the matter to the Utah Supreme Court.

Because Plaintiff had filed a motion to recuse Judge

Howard (which was denied), at the time he called the case

was being handled by a different judge. When the case

returned to Judge Howard, Judge Howard refused to

rescind the order.

Third, Plaintiff filed a breach of contract case against

BYU in state court in July 2002 when BYU police

“singled Plaintiff out and unlawfully detained Plaintiff on

campus as a student in violation of 42 U.S.C. [§] 1983,

when he was a student in 2002 and when a student

security guard supervised by the BYU police

approached one of Plaintiff's former roommates, a friend .

.. and began telling his friend of the many negative things

that police dispatch (appeared to have) had on Plaintiff."

Plaintiff claims that case was dismissed because the tnal

court held that the four corners of the contract did not

specifically prohibit the BYU police and security from

that behavior. Plaintiff appealed to the Utah Court of

Appeals and lost.

Plaintiff then appealed to the Utah Supreme Court.

Plaintiff claims the Utah Supreme Court allowed BYU to

file a late response, and as a result, Plaintiff’s writ of

certiorari was denied. Plaintiff’s motion to strike the late

brief was denied. Plaintiff “suspects that the motion to

strike was not forwarded to the justices."

Plaintiff alleges that Governor Huntsman is in charge of

selecting members of the judicial selection committees,

which makes binding recommendations for judges to fill

the vacancies for the judiciary of Utah. Plaintiff claims

that of the twelve state judges involved in his cases, all

twelve were members of The Church of Jesus Christ of

Latter-day Saints (hereafter referred to as “LDS Church"),

which, Plaintiff alleges. does not represent the

community.

ANALYSIS

A complaint’s sufficiency is a question of law requiring

the court to decide whether the factual allegations, if true,

would entitle Plaintiff to some form of legal remedy. See

Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Dunn v.

White, BBO F.2d 1188, 1190 (10* Cir. 1989), cert. denied,

493 U.S. 1059 (1990). The court accepts all well-pleaded

facts as true and draws inferences from those facts in

favor of Plaintiff. See Baucnman v. West

High Sch., 132 F.3d 542, 550 (1O* Cir.), cert. denied, 524

U.S. 953 (1998); Dunn, 880 F.2d at 1190. However, legal

conclusions, deductions, and opinions couched as facts are

not presumed to be true, and “conclusory allegations

without supporting factual averments are insufficient to

State a Claim upon which relief can be based." Fogle v.

Pierson, 435 E.3d 1252, 1263 n.7 (1O" Cir. 2006). In

addition, because Plaintiff is proceeding pro se, the

court construes his pleadings and arguments liberally. See

Haines v. Kerner, 404 U.S. 519, 520 (1972): Ledbetter v.

City of Topeka, Kansas, 318 F.3d 1183, 1187 (10° Cir.

2003).

In his 113-page complaint (including exhibits), Plaintiff

sets forth five main claims for relief. First, Plaintiff claims

an action under 42 U.S.C. 5 1983 against Defendants

Kono, Steele, BYU, Bennett Tueller Johnson & Deere,

and Judge Howard. Second, Plaintiff claims an action

under 42 U.S.C. § 1985 against Defendants Kono, Steele,

BYU, and Bennett Tueller Johnson & Deere. Third,

Plaintiff has brought a RICO claim against Defendants

Kono, Steele, BYU, and Bennett Tueller Johnson &

Deere. Fourth, Plaintiff has brought a common law

extortion claim against D&fEhdShtS Kono, Steele, BYU,

and Bennett Tueller Johnson & Deere. Fifth, Plaintiff has

brought an action under 42 U.S.C. 5 1983 against

Governor Jon Huntsman and Judge Fred

Howard. Sixth and finally, Plaintiff has brought a

common law abuse of legal process claim against

Defendants Steele, Kono, BYU, and Bennett Tueller

Johnson & Deere. The court addresses

each of these arguments in turn.

1. 1983 Claim

A. The court lacks jurisdiction over this claim under the .

Rooker-Feldman doctrine.

Federal district courts do not have jurisdiction to review,

reverse, or invalidate state court decisions. See District of

Columbia Ct. of App. v. Feldman, 460 U.S. 462, 482—86

(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-

16 (1923). The Rooker-Feldman doctrine bars “‘a party

losing in state court .. . from seeking what in substance

would be appellate review of [a] state judgment in a

United States District Court, based on the losing party'a

claim that the state judgment itself violates the loser’s

federal rights." Johnson v. De Grandy, 512 U.S. 997,

1005-06 (1994).

KK OK

The Tenth Circuit has understood this language to mean

that the Rooker-Feldman doctrine applies only to suits

filed in federal courts “after state proceedings are final.”

Guttman v. Khalsa, 446 F.3d 1027, 1032 (10" Cir. 2006).

In Guttman, the Tenth Circuit also explained that “a

judgment would be considered final for Rooker-Feldman

purposes: (1) ‘when the highest state court in which

review is available has affirmed the judgment

below and nothing is left to be resolved’; (2) ‘if the state

action has reached a point where neither party seeks

further action’; or (3) ‘if the state court proceedings have

finally resolved all the federal questions in the litigation,

but state law or purely factual questions (whether great or

small) remain to be litigated.'" Id. at 1032 n.2 (quoting

Federacion de Maestros de Puerto Rico V. Junta de

Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 24

(1° Cir. 2005)).

Here, Plaintiff is complaining of an arrest warrant that

was issued because he did not appear at a hearing

regarding a civil judgment that had been entered against

him in state court. It appears that the Rooker-Feldman

doctrine applies in this case because, from what the court

gathers from Plaintiff's complaint, presumably a final

order had been issued in that case. Thus, the proper course

of protesting the issuance of the arrest warrant was to use

the state court system for appealing such actions by a

State district judge. As a result, it appears that this court

has no subject matter jurisdiction over this claim.

However, as set forth below, even if the Rooker—

Feldman doctrine does not apply to this claim, Plaintiff's

claim should still be dismissed because it lacks merit. In

addition, Judge Khalsa, 446 F.3d 1027, 1032 0" Cir.

2006). In Guttman, the Tenth Circuit also explained that

‘a judgment would be considered final for Rooker-

Feldman purposes: (1) “when the highest state

court in which review is available has affirmed the

judgment below and nothing is left to be resolved’; (2) ‘if

the state action has reached a point where neither party

seeks further action’; or (3) ‘if the state court proceedings

have finally resolved all the federal questions in the

litigation, but state law or purely factual questions

(whether great or small) remain to be litigated." Id. at

1032 n.2 (quoting Federacion de Maestros de Puerto Rico

V. Junta de Relaciones del Trabajo de Puerto Rico, 410

F.3d 17, 24 (1° Cir. 2005)).

IT. 1985 Claim

7K KOK

A. The court lacks jurisdiction over this claim under the

Rooker~Feldman doctrine.

Third, Plaintiff has brought a RICO claim against

Defendants Kono, Steele. BYU. and Bennett Tueller

Johnson & Deere.

2K Ok OK

A. This court lacks jurisdiction over this claim under the

Rooker—Feldman doctrine.

IV. Common Law Bxtortion Claim

*K >K >K

V. Second Section 1983 Claim

2K OK OK

E. Governor Huntsman is not a “person” within the

meaning of 42 U.S.C. § 1983.

Second, Plaintiff's claim against Governor Huntsman fails

because the Supreme Court has held that neither states nor

state officers sued in their official capacities are “persons"

within the meaning of 42 U.S.C. § 1983. See Will v.

Michigan Department of State Police, 491 U.S. 58, 71

(1989). A lawsuit against a state official in his official

capacity is considered a lawsuit against the official’s

office, and as such, a lawsuit against the state itself. See

id. Plaintiff brought his action against Governor

Huntsman because of the governor's role in selecting

members of the state judicial selection committee; that

role is performed in Governor Huntsman's official

capacity as the state governor. As a result, Plaintiff’ s

claim against Governor Huntsman lacks merit.

VI. Common Law Abusn of Liglil Process Claim

*K OK K

DATED this 24 day of July, 2006.

BY THE COURT:

Samuel Alba

United States Chief Magistrate Judge

Appendix E — Docket U.S. Court of Appeals for

the Tenth Circuit

Docket: U.S. Court of Appeals for the Tenth Circuit

Case: 06-4243

10/12/2006 Civil case docketed. Preliminary record

filed. DATE RECEIVED: 10/12/06. Record on appeal

due 10/26/06 for Markus B. Zimmer Notice of

appearance due 10/26/06 for Jon Huntsman and Fred

Howard.

10/12/2006 Pro se notice of appearance filed by Aaron

Raiser in 06-4243. CERT. OF INTERESTED

PARTIES (y/n): n.

10/12/2006 Pro se docketing statement filed by Aaron

Raiser in 06-4243. Original and 4 copies c/s: y.

10/23/2006 Notice of appearance filed by Brent M.

Johnson as attorney for Fred Howard in 06-4243.

CERT. OF INTERESTED PARTIES (y/n): n.

10/30/2006 Record on appeal filed: 1 Volume -

Pleadings. Copy filed in Volume (y/n): y. Filed on

10/27/06.

10/31/2006 Jurisdictional review complete. Appellant's

brief due 12/11/06 for Aaron Raiser.

11/02/2006 Notice of appearance filed by Nancy L.

Kemp in 06-4243 as attorney for Jon Huntsman.

CERT. OF INTERESTED PARTIES (y/n): n.

11/22/2006 Appellant's motion filed by Appellant

Aaron Raiser in 06-4243 to extend time to file

appellant's brief until 1/10/07. [06-4243] Original and

3 copies. c/s: y.

11/22/2006 Order filed by Clerk granting Appellant's

motion to extend time to file apet brief. [1977520-1]

A/Pet brief due 1/10/07 for Aaron Raiser. No further

extensions of time will be granted on the clerk's

authority. Parties served by mail.

01/09/2007 Appellant's brief filed by Aaron Raiser in

06-4243. Original and 7 copies. c/s: y. Served on

1/8/07. Oral argument? Pro Se. Appellees’ brief due

2/12/07 for Jon Huntsman and Fred Howard.

01/16/2007 Notice of appearance filed by David M.

Kono and Daniel L Steele in 06-4243 as attorneys for

David Kono, Daniel L. Steele, Bennett Tueller: and

Brigham Young in 06-4243. CERT. OF INTERESTED

PARTIES (y/n): n.

01/24/2007 Appellee's notice that response brief will

not be filed by Appellee Fred Howard in 06-4243.

Original and 7 copies. c/s: y.

01/24/2007 Appellant's motion filed by Appellant

Aaron Raiser in 06-4243 to strike entry of appearance

and certificate of Interested parties. Original and 3

copies. c/s: y.

01/24/2007 Order filed by Clerk denying Appellant's

motion to strike entry of appearance and certificate of

interested parties [1994759-1]. Parties served by mail.

01/24/2007 E-Brief received from Appellee Jon

Huntsman in 06-4243. Submission Type: Email.

01/26/2007 E-Brief received from Appellee Jon

Huntsman in 06-4243. Submission Type: email.

01/30/2007 Appellee's brief filed by Jon Huntsman in

06-4243. Original and 7 copies. c/s: y. Served on

1/25/07. Oral Argument? n. Appellant's optional reply

brief due 2/12/07 for Aaron Raiser.

02/01/2007 Appellant's reply brief filed by Aaron

Raiser in 06-4243. Original and 7 copies. c/s: y.

02/06/2007 E-Motion (Motion for Leave to File

Appellees’ brief) received from David M. Kono, Daniel

L. Steele, Bennett Tueller and Brigham Young in 06-

4243. Submission type: email.

02/08/2007 Appellant's &quot;Renewed motion to

strike&quot; filed by Appellant Aaron Raiser in

06-4243 [06-4243]. Original and 3 copies. c/s: y

02/08/2007 Motion for leave to file appellees’ brief

[06-4243] filed by David M. Kono, Daniel L. Steele,

Bennett Tueller and Brigham in 06-4243. Original and

3 copies. c/s: y

02/12/2007 E-Brief Brief received from David M.

Kono, Daniel L. Steele, Bennett Tueller and Brigham

Young in 06-4243 Submission Type: email

02/12/2007 E-attachment to the brief received from

David M. Kono, Daniel L. Steele, Bennett Tueller, and

Brigham Young in 06-4243. Submission type: email

02/12/2007 Appellant's renewed motion to strike

submitted to court.

02/12/2007 Motion for leave to file appellees’ brief

filed by David M. Kono, Daniel L. Steele, Bennett

Tueller, and Brigham Young in 06-4243 submitted to

court.

02/12/2007 Order filed by Judges Kelly and

McConnell referring Appellant's renewed motion to

strike [1999399-1] and motion for leave to file

appellees’ brief [1999401-1] TO THE PANEL ON

THE MERITS. Parties served by mail.

02/12/2007 Appellant's response filed by Aaron Raiser

in 06-4243 to motion for leave to file a briefi. Original

and 3 copies. c/s: y

02/13/2007 Appellees’ brief received from David M.

Kono, Daniel L. Steele. Bennett Tucller, and Brigham

Young in 06-4243, but not filed (pending motion).

Original and 7 copies. c/s: y.

02/14/2007 Order filed by Clerk referring Appellant's

&quot;Opposition to Motion to File

Brief,&quot; [2000545-1] REFERRED TO

PANEL ON THE MERITS. Parties served by mail.

02/14/2007 Other E-document received from David M.

Kono, Daniel L. Steele, Bennett Tueller, Brigham

Young in Pleading type: Reply in Support of Motion

for Leave to File Appellees Brief. Submission type:

Email.

02/14/2007 Other E-document received from David M.

Kono, Daniel L. Steele, Bennett Tueller and Brigham

Young in 06-4243. Pleading type: Memorandum in

Opposition. Submission type: Email.

02/15/2007 Reply filed by David M. Kono, Daniel L.

Steele, Bennett Tueller and Brigham Young in 06-4243

to Appellant's response. Original and 3 copies. c/s: y

02/15/2007 Order filed by Clerk referring reply

memorandum [2002079-1] REFERRED TO PANEL

ON THE MERITS. Parties served by mail.

02/15/2007 Response in opposition filed by David M.

Kono, Daniel L. Steele, Bennett Tueller and Brigham

Young in 06-4243 to Appellant's motion to strike.

Originai and 3 copies. c/s: y

02/15/2007 Order filed by Clerk referring response in

opposition to motion to strike [2002083- 1]

REFERRED TO PANEL ON THE MERITS. Parties

served by mail.

04/11/2007 Case submitted to panel on the briefs

pursuant to Rule 34 for Conference Calendar.

05/08/2007 Motion filed by Appellant Aaron Raiser in

06-4243 to present oral argument [06-4243]. Original

and 3 copies c/s: y.

05/08/2007 Appellant's motion to present oral

argument submitted to court.

07/05/2007 Order filed by Judges McConnell, Porfilio

and Baldock. The Motion for Leave to File Appellees’

Brief received from BYU, its attorneys, and their law

firm is GRANTED. [|1999401-1] Mr. Raiser's renewed

Motion to Strike Entry of Appearance and Motion to

Present Oral Argument are DENIED. (located in the

Order and Judgment). [1999399-1] [2027626-1 |

07/05/2007 Terminated on the Merits after Submission

Without Oral Hearing; Affirmed; Written, Signed,

Unpublished. McConnell; Porfilio, authoring judge;

Baldock. [06-4243] Parties served by mail on 7/5/07.

07/11/2007 Motion for Enlargement of Time to File

Petition for Panel Rehearing filed by Appellant Aaron

Raiser in 06-4243 until 8/20/07 [06-4243]. Original

and 3 copies c/s: y.

07/11/2007 Appellant's motion to extend time to file

petition for rehearing submitted to court.

07/16/2007 Order filed by Judges McConnell, Porfilio,

and Baldock granting Appellant's motion to extend

time to file petition for rehearing [2045007-1].

Apellant's petition for rehearing must be filed on or

before 7/30/07. No further extensions of time will be

granted. Parties served by mail.

07/30/2007 Petition for rehearing [06-4243] filed

byAaron Raiser in 06-4243. Original and 3 copies. c/s:

07/30/2007 Document [204993 1-1] Petition for

rehearing filed by Appellant Aaron Raiser submitted to

panel.

08/02/2007 Amended certificate of service (for the

petition for Panel Rehearing) filed by Aaron Raiser in

06-4243.

08/06/2007 Order filed by Judges McConnell, Porfilio,

and Baldock denying Petition for rehearing [2049931

1].

08/14/2007 Mandate issued. Record on appeal return

due 12/12/07.

08/22/2007 Motion for Justices to Certify They Read

the Judgment Affirming received from Aaron Raiser in

06-4243, but not filed. Original and 3 copies. - Letter

sent in response.

08/22/2007 Motion requesting Petition for Rehearing

be Vacated for received from Aaron Raiser in 06-4243,

but not filed. Original and 3 copies. Letter sent in

response.

09/14/2007 Document: |) Motion to Vacate Order

Denying Oral Argument; 2) Motion to Vacate Order

Denying the Filing of Post-Judgment Motions received

from Aaron Raiser but not filed. Original and O copies.

Served on 09/14/2007. Manner of Service: US Mail.

(Response letter sent by dec).

Appendix F - Petitioner's Amended Complaint (AC)

Aaron Raiser, Pro Se

General Delivery

Canoga Park, Ca 91303\

In The United States District Court

for the District of Utah

Aaron Raiser,

Plaintiff;

Brigham Young University,

Fred Howard,

official capacity,

Daniel L. Steele,

David M. Kono,

BENNETT TUELLER JOHNSON & DEERE,

Jon Huntsman,

official capacity,

Does 1-10.

Defendants.

No. 2-2006:cv00256,

First Amended Complaint

Plaintiff complains against defendants and for causes of

action alleges as follows:

PARTIES, JURISDICTION AND VENUE

l. Plaintiff is a resident of Los Angeles County, State of

California;

2. Defendant Brigham Young University is a Utah

Corporation. At all times relevant hereto, was authorized to

and was conducting business in Utah.

3. Defendant Fred Howard is a Utah State Judge and on

information and belief is a resident of Utah County, At all

times relevant hereto, the acts alleged herein of Fred

Howard took place in Utah County.

4. Defendant Daniel L. Steele on information and belief is a

resident of Salt Lake County. At all times relevant hereto,

the acts alleged herein of defendant took place in either

Utah and/or Salt Lake County.

5. Defendant David M. Kono on information and belief is a

resident of Salt Lake County. At all times relevant hereto,

the acts alleged herein of defendant took place in either

Utah and/or Salt Lake County.

6. Defendant Jon Huntsman is governor of Utah and is in

charge of selecting the members of the judicial selection

committees.

7. Defendant BENNET, TUELLER JOHNSON & DEER is

a Utah Corporation. At all times relevant hereto, was

authorized to and was conducting business in Utah.

8. Doe One is believed to be Stephen W. Geary and on

information and belief is a resident of Salt Lake County but

is not named in the case until evidence verifies his part: at

all times relevant hereto, the acts alleged herein of

defendant took place in either Utah and/or Salt Lake

County.

9. Doe Two is believed to be KIRTON & McCONKIE is a

Utah Corporation but is not named pending further

discovery; at all times relevant hereto, was authorized to

and was conducting business in Utah.

10. Doe Three is believed to be Erik Davis and is not

named pending further discovery; At all times relevant

hereto, was a resident of Utah.

11. Doe Four is R. Willis Orton and is not named pending

further discovery. On information and belief is a resident of

Salt Lake County; at all times relevant hereto, the acts

alleged herein of defendant took place in either Utah and/or

Salt Lake County.

12. Doe Five is believed to be The Church of Jesus Christ

Of Latter-Day Saints.

13. Willis Orton and Stephen W. Geary are employees or

agents of KIRTON & McCONKIE.

14. Daniel L. Steele and David M. Kono are employees or

agents of Defendant BENNETT TUELLER JOHNSON &

DEER.

15. This action is brought pursuant to 42 U.S.C. § 1983,

1985, 18 U.S.C. § 1961 et. Seq., and state common law.

16. Jurisdiction is proper in this court pursuant to 28 U.S.C.

§ 1331, causes of action exists founded upon the U.S.

Constitution or federal law. Jurisdiction is proper in this

court pursuant to 28 U.S.C. § 1332, state law causes of

action exists and diversity exists; the amount in controversy

exceeds $75,000 exclusive of costs.

17. Venue is proper in this court is proper in this court

pursuant to 28 U.S.C. § 1391, the acts giving rise to this

action having arisen in Utah.

ALLEGATIONS RELE VENT TO ALL CLAIMS FOR

RELEW

18. On or about August 26, 2002 Plaintiff filed in the

Fourth District Court, State of Utah, a Complaint against

BYU alleging various common law torts. See Exhibit A.

State Case Docket Sheet.

19. On or about September 23, 2002, Counsel for BYU

removed that case to the Federal District Court for the State

of Utah. Exhibit B Docket 2: 02-cv-O1078-DB.

2U. Removal was allegedly premised on 28 U.S.C. 1441.

21.28 U.S.C. 1441 requires that the case being removed to

federal court have a federal cause of action.

22. The case removed by BYU did not have a federal cause

of action.

23. The case removed by BYU was rejected by the federal

courts.

24. After being rejected by the federal court, Plaintiff filed

the appropriate motion to get the case remanded back to

state court. Exhibit B Doc. 2.

25. That motion was not initially ruled on.

26. Plaintiff then called the federal court and personally

spoke with Judge Benson’s law clerk and explained that the

motion needed to be ruled on so the case could be

remanded.

27. Nothing happened.

28. Plaintiff again called the Judge Benson's law clerk and

again reminded them of the matter.

29. Nothing happened.

30. Plaintiff gave up and decided to wait for the case to get

remanded.

31. Economic forces caused Plaintiff to move to California

where he remained.

32. Judge Benson did not remand the case until almost one

year alter it was removed. Exhibit B Doc. 3.

33. After the case got remanded, Plaintiff attempted to

amend the complaint.

34. Plaintiff filed the motion to amend the complaint on 2-

27-04. Exhibit A.

35. BYU did not respond.

36. Plaintiff filed a motion to submit for decision on 3-16-

04. Exhibit A.

37. BYU then responded to the motion to amend some 2

months after the motion to submit for decision on 5-26-04.

Exhibit A.

38. BYU gave as a basis for denying the amended

complaint was that it was over a year or so from the filing

of the complaint and that due Plaintiff waiting 1 year to file

the motion to amend it should be denied.

39. Plaintiff was incensed by such logic as the one year

delay was caused by the unlawful removal of the case to

federal court by BYU where no federal cause of action

existed.

40. At the time Plaintiff read and re-read URCP Rule 11 tO

see if it applied to any motion for sanctions.

41. Alter reading URCP Rule 11, Plaintiff came to a

reasoned conclusion that Rule Il wouldn’t apply.

42. Plaintiff felt that the one year delay was prejudicial and

caused by either gross negligence or purposeful misuse of

the removal procedure by BYU.

43. Plaintiff then filed a motion for sanctions.

44. The Judge had first issued a ruling allowing Plaintiff to

amend the complaint stating BYU would not be prejudiced

and that it was early in the litigation (which ruling could

not be found in the docket when Plaintiff asked for a copy),

then issued a second ruling that amending after such a late

stage was improper and removal of the case to federal court

where no federal cause of action existed was ok and

awarded BYU attorney fees per URCP 11 to be paid by

Plainuff. Exhibit E

45. The Ruling of Exhibit E also contains many

misrepresentations, such as that Plaintiff waited 2 years to

file the motion to amend the complaint, where it was

actually 18 months, (see Exhibit A date of filing of

complaint August, 2002, motion to amend, Feb., 2003) and

that about 14 months of delay resulted from BYU's

removal of the case, that Plaintiff gave no authority for his

motion for sanctions, where Plaintiff shows 28 U.S.C. 144]

did not allow removal (see Exhibit H legal basis of 28

U.S.C. 1441 did not support removal, Plaintiff is also

unaware of any authority that a lack of authority for

sanctions means a motion is

frivolous), and that Plaintiff should have used URCP Il

which could not apply to the motion for sanction, and that

BYU response was timely, where the docket shows with no

uncertainty that it was filed 2 months late after the notice to

submit for decision deadline (see Exhibit A date of filing

motion to submit 3/16/03. and the response by BYU was

filed May 26, 2003).

46. Exhibit D shows the entry of the award of $2791.

47. Plaintiff filed a motion to reconsider that ruling, but the

judge simply ordered further monetary sanctions against

Plaintiff for filing the motion to reconsider. Exhibit F.

48. The original 3,000 or so sanction has been increased to

$4748 by amendment by BYU, reflecting the additional

sanctions allowed by defendant Howard.

49. The imposition of said sanctions are a flagrant and

patent violation of the U.S. Constitution.

50. The referred to defendants are enforcing the sanction!

contempt procedures in bad faith are motivated by a desire

to harass.

51. The referred to state case has not reached a final

adjudication for Rooker-Feldman purposes.

52. The arrest warrant issued for Plaintiffs arrest by

defendant Howard is void on its face and thereby subject to

collateral attack; the arrest warrant was issued based on

defendants representation of, and thereby based, the

existence of a valid state statute, URCP 69 that allowed for

the procedure, and URCP 69 does not exist. The motion

which led to that arrest warrant was and is attached to the

Order and is part and parcel of that Order and it is

irrefutable that URCP 69 does not exist.

ee Plaintiff was also involved with BYU in a federal case

for various federal civil rights violations.

54. At a hearing at the federal case on 4/19/05, various

motions were heard and in the course of the hearing the

judge required Plaintiff to do the deposition of a witness

from BYU in person. See Exhibit C at 15-16.

55. At the hearing which Plaintiff had appeared by

telephone, he accurately told the court that he was homeless

and barely had enough money to survive from day to day.

See Exhibit C at 16:13-20.

56. Despite the plea from the Plaintiff the court imposed a

near impossible task of getting to Utah within 3 months for

that deposition.

57. Counsel for BYU were defendants Daniel L. Steele and

David M. Keno and these were present and heard Plaintiff

state that be was homeless and barely had enough money to

survive from day to day. Id. at 2.

58. Alter learning Plaintiff was homeless and near

penniless, Counsel for BYU then went to the state court

judge and prepared an ex parte motion and Order requiring

Plaintiff to be in Utah in Person on July 19, 2005. Exhibit

Il.

59. BYU drafted that motion and Order and it specifically

stated the Plaintiff could be arrested if he did not show up.

Exhibit Il.

60. Counsel for BYU picked the date of July 19, 2005 for

the hearing date.

61. July 19, 2005 was also the last day for Plaintiff to do

discovery in the federal case.

62. Plaintiff had planned on deposing the witness in the

federal case, who were from BYU, on or around July 5 or

SO as to not come against the cut off.

63. Counsel for BYU picked the 19th of July for the

hearing date to force Plaintiff to do those depositions on the

last day of discovery when he had to be there for the state

hearing, or face arrest.

64. Plaintiff in fact had only enough money to travel to

Utah one time and was forced to postpone the federal

depositions until the 19th of July.

65. Counsel for BYU then withdrew their key witness’

availability for the 19th of July.

66. Counsel for BYU then also claimed privilege from

disclosing any information that would help Plainuff with

his case which claimed privilege was improper and later

ruled to be improper.

67. Plaintiff then had no time prior to discovery cut off to

get the information from BYU that Plainuff needed.

68. Counsel for BYU was aware Plaintiff could not be in

Utah prior to the 19th due to his poverty and work

schedule.

69. Counsel for BYU additionally obtained that illegal

Order for arrest warrant to force Plaintiff to postpone the

federal depositions so they could then obstruct Plaintiff

from obtaining the needed witness testimony in a federal

ease and in fact succeeded at that.

70. BYU purposefully deceived the state court judge that

URCP 69 gave authority for their motion and order. Exhibit

12.

71. URCP rule 69 does not exist.

72. BYU also violated Utah Rule of Professional conduct

3.3(d) which states that in an ex parte proceeding, a lawyer

shall inform the tribunal of all material facts known to the

lawyer which will enable the tribunal to make an informed

decision, whether or not the facts are adverse. Exhibit 12.

73. With that unlawfully obtained Order requiring Plaintiff

to be in Utah or face arrest in hand, steps of Extortion were

taken by the named members of the conspiracy when on 26

May 2005 Defendant Kono sent Plaintiff the email of

Exhibit J.

74. That Exhibit J shows an attempt to at monetary gain or

a thing of

high value, dismissal of a very valid court case against

BYU, murder the threat of physical force in the form of

arrest based on an illegally obtained warrant.

75. Counsel for BYU was aware of Plaintiffs financial

predicament and the infeasibility for him to make it to Utah

and that was highly important for the judge to be aware of

prior to issuing the Order.

76. If Plairtiff could make it to Utah it would be only once

for some time to come due to the financial difficulty.

77. Counsel for BYU then noticed Plaintiffs deposition in

Utah

78. Counsel for BYU acknowledged Plaintiff could not

make that deposition due to his poverty. See Exhibit G.

(The actual assertions by the sender are inaccurate; it does

show that he was aware Plaintiff could not afford to travel

to Utah)

79. Plaintiff did not attend that 7/19/05 hearing and BY U

asked for the arrest warrant and it was given. See Exhibit A

entry for 7/19/05.

80. Plaintiff pointed out to the state Court that URCP rule

69 did not exist in various court filings in that proceeding.

81. Plaintiff pointed out to the state court in that proceeding

that BYU violated in a sneaky way Utah Rule of

Professional conduct 3.3(d) which states that “In an ex parte

proceeding, a lawyer shail inform the tribunal of all

material facts known to the lawyer which will enable the

tribunal to make an informed decisicn, whether or not the

facts are adverse."

82. Counsel for BYU was aware Plaintiff could not make it

to Utah to attend that hearing he unlawfully obtained and

once issued guaranteed BYU that Plaintiff would be

arrested if he ever went back to Utah.

83. Counsel for BYU purposefully withheld the information

from Defendant Howard that Plaintiff was homeless and

near penniless which information would have assisted

Defendant Howard in making an informed decision

regarding how to proceed with the hearing.

84. Counsel for BYU purposefully withheld the information

to obtain the arrest warrant for Plaintiff

85. Counsel for BYU purposefully withheld the information

to obtain the arrest warrant for Plaintiff so as to interfere

with Plaintiffs right to interstate travel, to interfere with his

ability to prosecute his court cases against BYU as Plaintiff

would then be unable to go to Utah for any hearings, court

proceedings or to depose witnesses.

86. Counsel for the Mormon church also is alleged, on

information and belief to have participated in the

conspiracy with BYU to get Plaintiff unlawfully arrest.

87. With that illegally obtained arrest Plaintiff would not

then be able to go to Utah for any hearings, court

proceedings or to depose witness in his federal case against

the Mormon church.

88. That Counsel for the Mormon church participated in the

conspiracy is shown by Exhibit K which shows rm email

from R. Willis Orton that he was to travel to Utah County

for the hearing where the arrest warrant was issued which

case he and his client otherwise would have had no interest

in. See Exhibit K. (". , .to allow us time to return to Salt

Lake City following his supp order examination in Provo

that morning.” )

89. Plaintiff: had given counsel fro BYU two phone

numbers in order to conduct a deposition via phone that

BYU was conducting tor the federal case of Plaintiffs

father.

90. Plaintiff gave those numbers for the sole use of

contacting him for the deposition and stated that to their

counsel.

91. Counsel for BYU then did a reverse look up or the like

of the numbers.

92. Counsel for BYU thereby discovered Plaintiff s place of

work.

93, Counsel for BYU thereby discovered that Plaintiff was

a law school student in the Los Angeles area.

94. Counsel for BYU and the members of the conspiracy

also initiated an action in federal court have Plaintiff

declared a vexatious litigant using many lies and

falsehoods, and unsupported by any facts except their

conclusory allegations he was vexatious.

95. That motion to hold Plaintiff as a vexatious litigant was

also done with the purpose of injuring his chances at being

an attomey and practicing law.

96. Plaintiff appealed the issuance of the arrest warrant and

the near $3000 sanction.

97. In appealing that Order this Plaintiff filed a motion to

proceed in forma pauperis, which listed as his only assets

his car worth < $1000 and possibly a near worthless laptop

computer, which was made under oath, as being his only

assets.

98. Defendant Howard read and approved that motion.

99. In approving that motion Defendant Howard was then

aware that Plaintiff had no assets in Utah and the whole

need for the supplemental hearing and of 7/19/05 and

walrant was rendered moot.

100. Plaintiff appealed that Order to the Utah Court of

Appeals who held on Sept. 29, 2005 no final Order existed.

101. A return on warrant hearing was held on August 19,

2005 and BYU missed that hearing.

102. Plaintiff then called the Court and was told by the

judge’s (Taylor temporarily reassigned during motion of

bias) chambers that the warrant had been dropped because

no one showed up at the 8/ 19/05 hearing.

103. Based on that information Plaintiff did not further

appeal the matter to the Utah Supreme Court.

104. Plaintiff had filed a motion to recuse Defendant

Howard which was denied.

105. The case then returned to Defendant Howard who on

2/24/06 refused to rescind the Order. See Exhibit A.

106. In issuing and continuing to allow that arrest warrant

to be in power, Defendant Howard acted outside state legal

authority under which the warrant was issued, and in the

face of BYU’s URPC 3.3 (d) violation, and aware Plaintiff

in fact has no Utah property and is homeless and was near

penniless.

107. Plaintiff had also sent to BYU, prior to the 7/19

hearing, a URCP rule Il motion to get them to withdraw the

motion which would lead Plaintiff being arrested because

URCP 69 did not exist and they violated URPC 3.3 in

getting it.

108. BYU ignored it and Plaintiff attempted to file that

motion with Defendant Howard who once again monetarily

sanctioned Plaintiff for what he believed was a meritless

motion. Exhibit A.

109. Defendant Howard acted with religious bias including,

but not limited to, (1) allowing BYU to file their opposition

to amend the complaint over 2 months passed the standard

cutoff date from when the motion to submit for decision

was tiled (2) in forcing Plaintiff to pay nearly $3000 to

BYU when Plaintiff filed a motion for sanctions resulting

from BYU unlawfully removing the state case to

federal court where no federal cause of action existed

which caused a | year prejudicial delay in that case (3) in

monetarily sanctioning a second time Plaintiff when he

filed a motion to reconsider denial of the motion to amend

the complaint based on unlawful removal, the | year delay.

and the near $3000 monetary sanction (4) monetarily

sanctioning Plaintiff a third time for bringing a Rule | |

motion against BY U for their unlawfully obtaining an arrest

warrant for Plaintiff based on nonexistent URCP 69 and

violating Prof. R. Conduct 3.3 in not

informing that court that Plaintiff did not have the money to

make it to Utah (5) in issuing and maintaining an arrest

warrant for Plaintiff in a civil case where he is aware that

warrant was obtained based on a non-existent statute and in

violation of Prof R. Conduct 3.3, and (6) where the

Defendant Fred Howard was aware Plaintiff had no

property in Utah and was near penniless, and homeless, and

(7) allowing BYU to profit from its unlawful removal of the

State case and one year delay by denying amendment to the

complaint on the basis that it was sought one

year late where it could not be sought due to the one year

delay, which effectively terminated the case.

110. Counsel for BYU is an officer of the court.

111. Counsel for BYU has an affirmative duty to make

disclosures to the court that Plaintiff did not have the

monetary means travel to Utah for the hearing.

112. Counsel for BYU has an affirmative duty to make

disclosures to the court that URCP 69 upon which they

claimed authority for the Order which led to the arrest

warrant for Plaintiff that the statue does not exist.

113. Counsel for BYU directed its deceit at the judicial

machinery itself

114. Counsel for BYU intentionally made said

misrepresentations and omissions.

115. The state court was misled thereby as a result.

116. It is alleged on information and belief that Daniel L.

Steele, David M. Kono, R. Willis Orton, and Stephen W.

Geary and E1-ik Davis conspired together regarding the

issuing of the arrest warrant for Plaintiff.

117. This conspiracy took place with the intent to give their

respective clients advantage in their respective cases

against Plaintiff

118. That conspiracy also occurred for long-tern financial

gain for Daniel L. Steele, David M. Kono, and R. Willis

Orton in gaining a victory in an important court case for

high profile clients and would help their respective firms

and advancement in those firms.

119. That conspiracy also occurred to specifically with the

intent hinder Plaintiff in his access to the state and federal

court systems.

120. That conspiracy also occurred to specifically with the

intent to hinder Plaintiff and his access witnesses and

evidence needed for his state and federal court cases against

BYU and the Mormon Church.

121. Bail was set at $500 in place of the arrest warrant.

122. In having an arrest warrant out for Plaintiff where he

could not pay the S500 dollar bail that was required,

Plaintiff could not attend any hearings for any court cases

in Utah and the actions of the defendants and their the

conspiracy was with the intent to deny Plaintiff access to

the Courts located in Utah.

123. Plaintiff could not appear in any of those court cases

as a witness or have his deposition taken, or take

depositions and the actions of the defendants and their

conspiracy was with the intent to cause Plaintiff to lose the

chance to do discovery in Utah that would allow him to win

his cases.

124. Plaintiff was in fact hindered in his ability to attend

hearings and in his ability to obtain Witness testimony for

his court cases as a result of the illegal conduct of

defendants; Plaintiff was also precluded from obtaining

witness testimony and other evidence in his court cases as a

result of that unlawful conduct of defendants in obtaining

the arrest warrant and using it to prevent Plaintiff from

going to Utah;

defendants conduct amounted to a threat of physical force

and injury to prevent him from obtaining evidence.

125. Several separate and distinct acts to effectuate the

conspiracy were taken between these defendants.

126. These individuals met to plan their strategy on how to

bring to pass the violation of Plaintiffs civil mghts in

denying him access to the court systems, getting him

arrested, and interfering with witnesses in his court cases,

interfering with Plaintiffs right to Interstate Travel, and

interfering with Plaintiff being a witness in his court cases,

and attending any hearings in Utah and giving testimony at

any of those hearing that might be required.

127. Defendant Kono also took the step of sending an

extortion letter to Plaintiff to get Plaintiff to drop his cases

against BYU or face physical threat of arrest by the

unlawful warrant they would obtain.

128. Defendant Steele had gone before a state court judge

and deceived that judge in getting the Order signed in an ex

pane proceeding, based on a non-existent state rule. URCP

69 and in violation of Utah R. Prof Conduct 3.3, which

would allow them to get Plaintiff arrested.

129. Defendant Steele and Kono also took steps to further

that conspiracy in attending the 7:19.05 hearing and seekiiig

the arrest warrant of Plaintiff which each were fully

informed was being unlawfully obtained.

130. Extortion occurred by the named members of the

conspiracy when on 26 May 2005 Defendant Kono sent

Plaintiff the email of Exhibit J which used as a threat of

force of an unlawful arrest by the unlawfully obtained

Order which would lead to Plaintiffs arrest to force or

intimidate or coerce Plaintiff to drop his court cases which

would result in a loss of substantial monetary gain from the

award from

those cases.

131. In getting the 7,19.05 hearing date, and forcing

Plaintiff to Utah on that date, where Plaintiff could only

make that trip once, Plaintiff was forced to put off his

deposition of key witnesses in his case until the last day of

discovery and BYU then withdrew the availability of those

witnesses causing Plaintiff to not be able to obtain the

evidence necessary to win the court case against them

where Plaintiff could have done those depositions earlier

had BYU not gotten the state

hearing Order.

132. On or about July 2002, Plaintiff had also filed a breach

of contract case against BYU in state court alleging breach

of the covenant of good faith and fair dealing when BYU

police singled Plaintiff out and unlawfully detained

Plaintiff on campus as a student in violation of 42 U.S.C.

1983, when he was a student in 2002 and when a student

security guard supervised by the BYU police approached

one of Plaintiffs former roommates, a friend, and who was

taking the same CS460 class and began telling his friend of

the many “negative” things that police dispatch had on the

police file concerning Plaintiff. Exhibit L.

133. Those torts by BYU and their police and security

created an atmosphere where Plaintiff could not study.

134. For example, the student security guard literally

destroyed the friendship of his friend, former roommate,

and fellow classmate. It created a lot of anger that the

police would have one of their security guards give out

damaging information to a classmate and former roommate.

That classmate in tum could and perhaps did, tell other

students making the classroom and lab experience

miserable.

135. The police also published articles in the school

newspaper telling the students to use caution around

Plaintiff or to avoid him.

136. An article was also published wherein information

from the BYU police stated Plaintiff had been arrested for

criminal trespassing at BY U, which was false.

137. Plaintiff was also singled out and to be harassed by the

BYU police was continually stopped and detained by them

under the color of state laws where Plaintiff was on campus

like any other fellow student.

138. BYU and Plaintiff had entered into a contract where

Plainuff could take 10 classes for free for next 10 years

spring and summer term.

139. Plaintiff felt he was being materially injured as he

went to enjoy the fruits of the contract and filed suit. See

Exhibit L Complaint.

140. That occurred after years of attempting the BYU

administration to remedy the matter.

141. That case was dismissed because the court incorrectly

held that the four corners of the contract did not specifically

prohibit BYU and security from committing those torts.

142. Plaintiff appealed.

143. Plaintiff forcefully argued that the torts being

committed were injuring Plaintiff as he went to enjoy the

fruits of the contract citing the correct Utah law precedent,

St. Benedict? Dev. Co. v. St. Benedict 's Hosp., 811 P. 2d

194 (Utah 1991) which states that “Under the covenant of

good faith and fair dealing, each party impliedly promises

that he will not intentionally or purposely do anything

which will destroy or injure the other party’s right to

receive the fruits of the contract.’ See Exhibit U Brief at

numbered pages 82-96.

144. The Court of Appeals, though needing to take the facts

of the complaint as true, could not accept that BYU could

commit such torts and completely ignored every fact of any

commission of any tort in their opinion.

145. Utah court of Appeals completely ignored Plaintuffs

case law that showed he had his case won.

146. Utah Court of Appeals completely ignored Plaintiffs

facts ofthe case to make it appear no torts had been

committed by BYU.

147. Utah court of Appeals also allowed new, and highly

prejudicial “facts” and falsehoods to be raised by BYU for

the first time on appeal and remain in the record after

Plaintiff asked that it be taken out.

148. On information and belief the Court of Appeals

consists entirely of 7 Mormon church members.

149. Jon Huntsman is governor of Utah and is in charge of

selecting the members of the judicial selection committees.

150. That committee makes binding recommendations for

judges to fiil the vacancies for the judiciary of Utah.

151. Plaintiff alleges that the Court of Appeals actions in

completely ignoring the facts of the complaint showing

torts committed by BYU, resulted from religious bias in

favor of BYU and the Mormon church.

152. The Court of Appeals actions in completely ignoring

the case law of that appeal that showed dismissal was

improper, resulted from religious bias in favor of BYU.

153, Plaintiff appealed to the Utah Supreme Court. Exhibit

P -Docket entry 2.

154. BYU failed to file a timely response to Plaintiffs

Petition for Certiorari.

155. BYU filed a response about 22 days late. Exhibit P -

Docket entry 5.

156. That response was due on August 29, 2004.

157. That response was filed on Sept. 20, 2004.

158. It was tiled alter the case had been circulated.

i59. BYU spoke to Pat Bartholomew the Supreme Court

clerk who allowed the late brief and had it directly sent to

the Supreme Court justices -22 days late.

160. Based on information and belief, such a late response

has never been allowed prior in the history of the Utah

Supreme Court.

161. As a result of the allowance of the later response,

Plaintiff s writ of certiorari was denied.

162. Pat Bartholomew allowed that late response out of

religious bias for BYU and the Mormon church.

163. That late response also contained many false and

prejudicial statements.

164. Plaintiff tiled a motion to strike that late brief but the

petition was denied.

165. Plaintiff suspects that the motion to strike was not

forwarded to the justices.

166. On information and belief it is alleged that the

Mormon church has too much influence in the judiciary of

Utah due to the judiciary being predominantly Mormon.

167. That has resulted due to the influence of the Mormon

church on its members in their view of non-Mormons.

168. That influence results in Mormons mainly selecting

Mormons for the judiciary.

169. On information and belief it is alleged that of the 12

judges in the Fourth District where the state cases with

BYU were, Courts covering Utah, Wasatch, Juab and

Millard county, 12 of those judges are Mormon.

170. The relative “practicing” Mormon church membership

for those counties are about 50%.

171. On information and belief, of the 5 Supreme Court

justices of the state, 4 are Mormon.

172. The relative "practicing" Mormom church

membership for the state is about 50%.

173. That imbalance can give, and often does give, and has

in Plaintiffs cases against BYU, the Mormon church and its

affiliate organizations such as BYU an unfair advantage in

any court proceeding against them.

174. That imbalance results in a loss of due process of law

when the Mormon church and its affiliate organizations are

part of any court proceeding against them.

175. That imbalance results in a denial of equal protection

of law when the Mormon church and its affiliate

organizations are part of any court proceeding against them.

176. That imbalance and entanglement has resulted in a

violation of the

establishment clause of the U.S. Constitution.

177. That imbalance and entanglement has resulted in a

violation Plainuffs due process of law rights of the U.S.

Constitution.

178. That imbalance and entanglement has resulted in a

violation Plaintiff s equal protection of law rights of the

U.S. Constitution Plaintiff does not have access to a fair

and impartial tribunal in his cases against BYU.

179. That imbalance and entanglement did give BYU, a

Mormon sponsored and controlled school, unfair advantage

in the two court cases against them BYU being given

procedural and substantive favoritism which other litigants

similarly situated do not receive at court.

180. The Mormon church controls the politics of Utah via

its members who form the slight majority in the state.

181. The Mormon church holds itself out as the only “true”

church in the world.

182. Their members are required to accept that belief.

183. kor the Mormon church that belief is not a lofty ideal,

but an absolute truth to them.

184. The church and its various organizations are thus

believed by its members to be “perfect” as they are

supposed to be the only true church and lead by a prophet.

185. Plaintiff does not raise this to criticize in any way their

beliefs, but the allege the facts necessary to show the

necessary facts for the causes of action.

186. Mormon church members also believe that temple

attendance is essential to going to heaven.

187. Faithful members thus must participate in the temple

ceremonies.

188. One of those ceremonies requires the Mormon church

member to take a solemn oath and to covenant to give all

that they possess, even their own lives if necessary, to

defend the "kingdom of God" or Mormon church.

189. In taking that oath, each member must raise mght their

hand to the square and agree to that oath while bowing their

heads.

190. This oath is not spoken of officially outside ofthe

temple.

191. Mormon church followers are also taught to take an

active role in promoting and building the Mormon church.

192. Mormon church followers also must accept the

Mormon church the only true church.

193. The combination of oaths, beliefs, and teachings

makes the Mormon church receive favored or differential

treatment by Mormon judges.

194. Any court case that accuses the Mornmnom church or

BYU. its school, of wrongdoing would make it difficult for

the judge to accept.

195. Any ruling in any court case against the Mormom

church or BYU as a defendant of wrongdoing ts

problematic in light of the temple oath to do all in their

power to defend the Mormon church.

196. Any ruling in any court case that accuses the Mormon

church or BYU, its school, would also tarnish the

reputation ofthe Mormon church and hurt its missionary

efforts.

197. Each Mormon Judge in Utah who is faithful and

attended the temple has taken that oath.

198. BYU is also controlled by the Mormon church who is

their sponsor.

199. It is alleged on information and behef that Defendant

Fred Howard is a faithful members of the Mormon church

and as such have attended the temple and as a result is thus

additionally influenced in the case involving BYU.

200. It is further alleged that this bias has influenced Judge

Howard in how he has handled the case, in imposing

substantial monetary sanctions on Plainuff, and in issuing

the arrest warrant for Plaintiff.

201. Each member is also aware that their tithes go to

support BYU.

202. BYU has often been referred to by its full time church

leaders as the "Lord’s University”.

203. That title is taken literally by the Mormon church

members.

204. The Judiciary for the District Court of Utah County is

substantially

disproportionately filled with Mormon judges.

205. Because of this disproportionality of Mormon judges

and associated bias, Plaintiff is unable to get an impartial

hearing or appellate review on any case against BYU.

206. Utah Mormons see former Mormons has having fallen

away from the truth and view non-Mormons as incapable of

seeing the truth.

207. This view is perpetuated by church teachings and

attitudes.

208. That attitude influences those Mormons are on the

State judicial selection committees who select the next

judges in Utah.

209. We tolerate democrats picking democrat judges for the

judiciary, and republicans doing the same.

210. We might accept that as human nature to pick those

whose views and ideals we share.

211. When the judges are then picked along religious lines

then that is not proper.

212. On information and belief it is alleged the ratio of

Mormons to Mormon Judges is substantially

disproportionate to the non-Mormons to non-Mormon

Judges in Utah and judges are mostly selected along

religious lines.

213. This has created a problem when the Mormon church

is a pal-ty to a State court case causing unfair prejudice to

the opposing party.

214. Plaintiff alleges that he has been prejudice by a

violation of church and state due to the near impossibility

of getting a non-Mormon judge in Utah County and due to

the powerful control that the Mormon Church has in the

lives of its members in how the view that church.

215. Placing their church merabers, some who are judges,

under secret oaths to do all in their power to defend the

Mormon church creates a conflict of interest that can not

easily, and is nearly impossible, to overcome when that

judge has that church in their courtroom.

FIRST CLAIM FOR RELIEF

(42 U.S.C. § 1983 Daniel L. Steele, David M. Kono, and

Brigham Young University, BENNETT TUELLER

JOHNSON & DEERE)

216. Plaintiff incorporates the allegations contained in

paragraphs | through 215 above as if set forth in full at this

point.

217. In unlawfully seeking and obtaining an Order for the

arrest of Plaintiff based on a non-existent statute,

Defendants Daniel L. Steele, David M. Kono, and Brigham

Young University, BENNETT TUELLER JOHNSON &

DEERE were acting under color of

state law.

218. Defendants Daniel L. Steele, David M. Kono, and

Brigham Young University, BENNEIT TUELLER

JOHNSON & DEERE willfully and maliciously violated

Utah Rule of Professional conduct 3.3(d) to unlawfully

obtain that arrest warrant in not giving out critical

information to the judge regarding the ex parte motion

being sought that

Plaintiff was homeless and barely had enough money to

survive and thus could not make it to Utah for the hearing.

219. Defendants Daniel L. Steele, David M. Kono, and

Brigham Young

University, BENNETT TLJELLER JOHNSON & DEERE

willfully and

maliciously deceived the state court judge stating that the

Order to arrest Plaintiff could be based on URCP 69 when

URCP 69 does not exist.

220. In obtaining that unlawful arrest warrant, Plaintiff was

deprived of rights privileges and immunities, including the

right to interstate travel, the right to attend and participate

in judicial proceedings or which he was a part, and

obtaining witness depositions.

221. As a result of the deprivation of his civil rights,

Plaintiff has suffered injury tn his ability to attend, and

participate in, and prosecute his state and federal court

cases, and his right to interstate travel has been denied in

Utah.

222. The acts of Daniel L. Steele, David M. Kono, and

Brigham Young

University, BENNETT TUELLER JOHNSON & DEERE

were willful and intentional.

223. As a result Plaintiff has suffered extensive damages, in

excess of $1 .8 million dollars, the exact amount to be

shown at trial.

224. Defendant's actions were the proximate cause of

Plaintiffs injury.

225. Defendant Brigham Young University was aware, or

reasonably should have been aware of the conduct of their

agents in bringing about Plaintiffs injury.

226. Defendant BENNETT TUELLIER JOHNSON &

DEERE was aware, or reasonably should have been aware

of the conduct of their employees conduct in bringing about

Piaintiffs injury.

227. Both BENNETT WELLER JOHNSON & DEERE and

Brigham Young University are liable under the doctrine of

respondeat superior for the acts of their named agents or

employees.

228. In issuing that unlawful arrest warrant, Plaintiff was

deprived of rights privileges and immunities, including the

right to interstate travel, the right to attend and participate

in judicial proceedings or which be was a part, and

obtaining witness depositions.

229. Defendants’ acts were under color of state law.

230. Cefendants' acted in concert with the state in

unlawfully obtaining the arrest warrant.

231. The state was a joint participant with the Defendants

in unlawfully obtaining the arrest warrant.

232. As officers of the state court, the defendants

additionally qualify as state actors.

SECOND CLAIM FOR RELEIF

(42 U.S.C. § 1985 Daniel L. Steele, David M. Kono, and

Brigham Young University, Fred Howard, BENNETT

TUELLER JOHNSON & DEERE)

233. Plaintiff incorporates the allegations contained in

paragraphs | through 232 above as if set forth in full at this

point,

234. Defendants took actions to deprive Plaintiff from

attending both state and federal court proceedings, from

freely obtaining testimony from witnesses to those court

cases and otherwise hindering Plaintiff s quest for justice in

those cases.

235. Defendants did that by intimidation of Plaintiff and by

threat of having Plaintiff arrested by an illegally obtained

and unlawful arrest warrant.

236. Defendants actions were done with the intent to deny

Plaintiff the equal protection of the laws, to injure him or

his property for lawfully enforcing, or attempting to

enforce, the rights of Plaintiff to the equal protection of the

laws;

237. Defendants did conspire to deny Plaintiff equal

protection of laws, to intimidate Plaintiff into giving up

legal rights he was entitled to under the U.S.

Constitution,,and to deprive Plaintiff of the right to attend

his state and federal court proceedings, and from freely

obtaining testimony from witnesses for those court cases.

238. Defendants did conspire to deny Plaintiff of having

and exercising any right or privilege of a citizen of the

United States.

239. Defendants did take steps to carry out each of the

named conspiracies.

240. Defendants acts were done under color of state law:

241. Defendant’s actions were the proximate cause of

Plainuffs injury.

242. As a result of Defendant's acts, Plaintiff has been

injured in being deprived rights, liberties and immunities

guaranteed him under the Federal Constitution.

243. Plaintiff has been injured in his ability to prosecute his

state and federal court cases, in not being able to attend

legal proceedings and in not being able to obtain the

necessary witness testimony to prevail in those court cases.

244. Defendant Brigham Young University was aware, or

reasonably should have been aware of the conduct of their

agents in bringing about Plaintiffs injury.

245. Defendant BENNETT WELLER JOHNSON &

DEERE was aware, or reasonably should have been aware

of the conduct of their employees conduct in bringing about

Plaintiffs injury.

246. Both BENNETT TUELLER JOHNSON at DEERE

and Brigham Young University are liable under the

doctrine of respondeat superior for the acts of their

defendant agents or employees.

THIRD CLAIM FOR RELEIF

(RICO .18 U.S.C. § 1961 et. Seq. Daniel L. Steele. David

M. Keno,

Brigham Young University, BENNETT TuELt4En

JOHNSON at DEERE)

247. Plaintiff incorporates the allegations contained in

paragraphs | through 246 above as if set forth in full at this

point.

248. 18 U.S.C. § 1961(1) (B). .8 1503 Obstruction of Justice.

Defendants, by use of the force of the unlawfully and

comiptly obtained arrest warrant, sought to influences,

obstructs, and impede, and did obstruct and impede the due

administration of justice

249. Defendants by use of an email communication

attempted to INTIMIDATE Plaintiff to drop his due

process of law rights in dropping his valid court cases

against defendants, or to face an unlawful arrest by a

warrant that was illegally obtained.

250. Defendants did conspire to deny Plaintiff his due

process of law rights and to interfere with the lawful

administration of justice.

251. Defendants did take steps to iurther that conspiracy

and did take multiple steps to do so.

252. Defendants intended to become members of the

conspiracy.

253. Each Defendant joined with the other members of the

alleged conspiracy in an agreement to conduct or

participate in the affairs of the enterprise through a pattern

of racketeering activity.

254. Each Defendant understood the nature or unlawful

character of the

conspiratorial plan and were aware of the existence and

purpose of the enterprise.

255. Each Defendant agreed that the enterprise would be

conducted through a pattern of racketeering activity.

256. Defendant's actions were the proximate cause of

Plaintiffs injury.

257. As aresult of Defendant's acts, Plainuff has been

injured in being deprived rights, liberties and immunities

guaranteed him under the Federal Constitution.

258. Plaintiff has been injured in his ability to prosecute his

state and federal court eases, in not being able to attend

legal proceedings and in not being able to obtain the

necessary witness testimony to prevail in those court cases.

259. Defendant Brigham Young University was aware, or

reasonably should have been aware of the conduct of their

agents in bringing about Plaintiffs injury.

260. Defendant BENNETT TUELLER JOHNSON &

DEERE was aware, or reasonably should have been aware

of the conduct of their employees conduct in bringing about

Plaintiffs injury.

261. Both BENNETT TUELLER JOHNSON & DEERE

and Brigham Young University are liable under the

doctrine of respondeat superior for the acts of their

defendant agents or employees.

FOURTH CLAIM FOR RELEIF

(Common Law Extortion Daniel L. Steele, David M. Kono,

Brigham Young University, BENNETT TUELLER

JOHNSON & DEERE)

262. Plaintiff incorporates the allegations contained in

paragraphs | through 261 above as if set forth in full at this

point.

263. Defendants have used the threat the use of physical

force of an-est by what would become an illegally obtained

arrest warrant and to extort Plaintiff into dropping his legal

procecdings against defendant BYU.

264. Defendants stood to gain something of extreme value,

including the dropping of the legal cases, and including

attendant monetary awards for damages from those cases.

265. Defendants’ acts were intentional.

266. Defendant’s actions were the proximate cause of

Plaintiffs injury.

267. As aresult of Defendant's acts, Plaintiff has been

injured in being unlawfully intimidated, and is threatened

with a deprivation of his liberties of freedom and to be free

from unlawful arrest.

268. Defendant Brigham Young University was aware, or

reasonably should have been aware of the conduct of their

agents in bringing about Plaintiff s injury.

269. Defendants BENNETT TUELILER JOHNSON &

DEERE were aware, or reasonably should have been aware

of the conduct of their employees conduct in bringing about

Plaintiffs injury.

270. Both BENNETT TUELLER JOHNSON & DEERE

and Brigham Young University are liable under the

doctrine of respondeat superior for the acts of their

defendant agents or employees.

FIFTH CLAIM FOR RELEIF

(42 U.S.C. § 1983 Violation of Separation of church State

lst Amend. -

Governor Jon Huntsman, Judge Fred Howard)

271. Plainuff incorporates the allegations contained in

paragraphs | through 270 above as if set forth in full at this

point.

272. Jon Huntsman is governor of Utah and is in charge of

selecting the members of the judicial selection committees

who make binding recommendations for judges to till the

vacancies for the judiciary of Utah.

273. Selection committees have shown a pattern of

selecting mainly Mormon judges to fill vacancies.

274. That selection process is done predominantly on

religious lines.

275. That process has resulted in Utah judges being

substantially Mormon where the actual religious make up

of Utah is about 50% Mormon.

276. That selection process has created a judicial system

where Mormon

sponsored and affiliated organizations receive differential

treatment from those Mormon judges.

277. Mormon Judges who are faithful must accept the

Monnon church as being the only true church in the world

and thus as representing the Lord in its actions and those

Judges also are given a life long calling to promote and

build the Mormon church.

278. Mormon also must attend the temple and there take an

oath to defend Mormonism.

279. BYU is a Mormon affiliated institution and has been

given differential treatment by the judiciary as a result of

the judiciary being composed almost entirely of LDS

judge’s. which has resulted in and interference with the due

process of law administration of justice in Utah.

280. Defendants acts were done under color of state law:

281. Defendant’s actions were the proximate cause of

Plaintiffs injury.

282. As a result of Defendant's acts, Plaintiff has been

injured tn being deprived rights, liberties and immunities

guaranteed him under the Federai Constitution and a denial

of the equal administration of law, and the right to due

process of law as a result of excessive entanglement of

religion.

SIXTH CLAIM FOR RELEIF

(Fraud upon the State Court)

283. Plaintiff incorporates the allegations contained in

paragraphs | through 282 above as if set forth in full at this

point.

284. Counsel for BYU and BYU obtained an arrest warrant

for Plainuff through unlawful and deceitful means.

285. Counsel for BYU is an officer of the court.

286. Counsel for BYU has an affirmative duty to make

disclosures to the court that Plaintiff did not have the

monetary means travel to Utah for the hearing.

287. Counsel for BYU has an affirmative duty to make

disclosures to the court that URCP 69 upon which they

claimed authority for the Order which led to the arrest

warrant for Plaintiff that the statue does not exist.

288. Counsel for BYU and BYU intended to deceive the

State judge.

289. Counsel for BYU directed its deceit at the judicial

machinery itself

290. Counsel for BYU intentionally made said

misrepresentations and omissions.

291. The state court was misled thereby as a result.

292. Defendants’ acts were purposeful or grossly reckless.

293. Defendant was aware, or reasonably should have been

AWARE of the harm that would be caused to Plaintiff.

294. Defendant was aware, or reasonably should have been

aware, of the unlawful nature of their conduct.

295. Defendant acts have injured Plaintiff in denying him

access to the state of Utah, limiting his ability to obtain

needed testimony in those cases, and

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