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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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?

il

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?

lV

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
Fae GE CI ikikccda ceed Vill
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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

1X

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

Xl

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

Xl

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

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)

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.

1.

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.

13

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.

be

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

14

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

-—
7)

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

16

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.

KT

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

17

under 1983.
II.
A,

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.

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

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

19

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.
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

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.

B.

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.

30

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

31

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
Dictionary of Law, © 1996

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

35

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,
s/

Aaron Raiser

36

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.

I.
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).

I.
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

wa

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

~J

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
s/

John C. Porfilio
Circuit Judge

Appendix B - Order On Rehearing

United States Court of Appeals,
Tenth Circuit.

Aaron RAISER
Plaintiff-Appellant,
v.

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).

A.

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.

tN

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.

B.

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.

oe

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,

v.

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

Nm

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 &

WN

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 "Renewed motion to
strike" 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
"Opposition to Motion to File
Brief," [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:
y.

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;
v.

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.

ho

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

10

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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0529%3A1. Public record. Not legal advice.