Petition for Rehearing — Jensen v. Sweet Home Home One One Care Care Facility Facility (No. 06-546)
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SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK
TOM JENSEN, Individually and as an advocate
for the rights and interests of his mother, Marguerite Jensen (now deceased), a frail elderly
institutionalized person,
Petitioner
SWEET HOME ONE CARE FACILITY
A business entity, et al.
On Petition for Rehearing of Denial of Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit
PETITION FOR REHEARING OF DENIAL OF WRIT OF CERTIORARI
Tom Jensen
P.O. Box 614
Oakland, CA. 94604
Petitioner in propria persona
RECEIVED |
FEB 8 - 2907
OFFICE oF THE C
SUPREME COURT BM
QUESTIONS PRESENTED
I. | Was Petitioner denied his due process right to a hearing on his claims before an impartial
tribunal by the district judge ?
If. Do the proceedings in this case lack the appearance of fairness ?
III. Does this court have the jurisdiction or discretion and duty to hear the foregoing matters ?
PARTIES TO THE PROCEEDINGS BELOW
Petitioner/Plaintiff
Tom Jensen.
Defendants
Sweet Home One Care Facility, a business entity; Minerva Mostrales, Soledad Almocera
(“Sweet Home defendants’’).
California Health and Welfare Agency (currently known as the California Health and
Human Services Agency), California Department of Social Services, Community Care
Licensing Div., public entities; Elaine Arrington, Anita Gopaul, Martha Lopez (‘State
defendants’).
Kaiser Permanente Medical Offices — Milpitas (a.k.a. Kaiser Permanente Medical Group,
Inc., Kaiser Foundation Health Plan, Kaiser Foundation Hospitals) business entities; Bil] Jue
MD (“Kaiser defendants”).
Peter Jensen, Beth Wells (“Jensen/Wells’”).
TABLE OF CONTENTS
page
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Statement of the facts material to consideration of the questions presented ....... ]
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1. The district court judge’s comments in his order dismissing petitioner’s
claims against Jensen/Wells shows that he failed to properly consider
petitioner’s pleadings, and demonstrated his partiality to opposing parties’
version of ihe facts, and a closed mind to the pleadings .................... e000 5
2. The judge improperly and undeservedly threatened petitioner with
sanctions in his order responding to petitioner’s motion requesting
reconsideration of the judge’s failure to considet the material pleaded
facts, evidence, and inferences alleged in the complaint regarding the
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3. The judge effectively, and improperly and undeservedly carried out his
sanction threat shortly after issuing its threatening order, by his improper
ad hoc “termination” of Petitioner’s motions for relief from Kaiser
defendants’ abusive litigation tactics, and by improperly ignoring
Petitioner’s subsequent requests for discovery relief pursuant to its
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4. Petitioner’s letter-motion filed in response to the judge’s termination of
Petitioner’s motions and for the judge’s failure to respond to his Standing
. Order 2 letters seeking discovery relief was effectively a motion for
recusal for the judge’s lack of impartiality, to which the judge should have
but did not respond either by recusing himself sua sponte or by hearing the
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5. The judge improperly carried forward its improper predisposition on
Jensen/Wells’ motive and intent into its summary judgment disposition ...... 9
6. The judge’s lack of impartiality is evidenced by the judge’s comments
obliquely charging Petitioner with the fault for the length of the proceedings
and the volume of the filings, and stating that the “heart” of the case was
petitioner’s despondency over the state of his relationship with his family
and that his motivation for bringing this action was vengeance ............... 11
7. This court has jurisdiction to hear the lack of impartiality issue because
the issue was raised but not heard in the district court and in the court
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TABLE OF AUTHORITIES
Federal Cases
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Goldberger v. Goldberger, 624 A.2d 1328, 1332 (Md. App. 1993) ...........ccccceeeeeececeeeeee 8, 11
In Re Eastmoore, 304 So.2d 756, 757-58 (Fla. 1987) ..........csccscecccscccccscoceccesceeess 8, 10, 11
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Federal law
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PETITION FOR REHEARING OF DENIAL OF WRIT OF CERTIORARI
Tom Jensen, for himself and as an advocate for the rights and interests of his mother
Marguerite Jensen, a frail elderly institutionalized person (now deceased), respectfully petitions
for a rehearing of the denial of his petition for writ of certiorari to review the judgment of the
U.S. Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The May 18, 2006 decision of the U.S. Court of Appeals is reproduced at App.1 of
petitioner’s Petition for Writ of Certiorari. The January 31, 2005 decision of the U.S. District
Court for the Northern District of California granting defendants’ summary judgment motions is
reproduced at App.7 of the Wnit.
JURISDICTION
This Court has jurisdiction for rehearing a petition for writ of certiorari pursuant to
Supreme Court Rule 44.
RELEVANT CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS
The relevant constitutional, statutory, and regulatory provisions are reproduced in the
Appendix at App.v
STATEMENT OF THE CASE
Statement of the Facts Material to Consideration of the Questions Presented
1. In petitioner’s proposed 3 amended complaint against Jensen/Wells he alleged, inter
alia, that “state defendants acceded to fraudulent, defamatory, pretextual, and retaliatory
allegations against Plaintiff which were made to them by Sweet Home and Family defendants,
(Jensen/Wells) and which were meant to discredit and defame him and to discredit his reports of
the neglect of his mother.” App.1. In their 7/10/03 motion to deny of leave to amend,
Jensen/Wells asserted that “[t]he gist of Plaintiff's allegations against the Family defendants is ©
their purported communications with the other defendants regarding their concerns as to
Plaintiff's conduct that they believed to be detrimental” to petitioner’s mother. App.2. The Judge
in his 7/31/03 order denying leave to amend stated, inter alia, that “the attached exhibits, if taken
as true, acknowledges that [Jensen/Wells] merely expressed their views to state officials in the
hopes that they would agree.” App.3. |
2. On 9/23/03 Petitioner filed a motion for reconsideration of the court’s order denying
leave to amend stating, inter alia, that the judge had “wholly ignored the factual allegation of the ”
complaint that alleged facts and evidence of [Jensen/Wells’] improper motives of retaliation and
discrimination on the basis of disability and plaintiff's arguments setting out these things.”
App.4-5. In its 1/5/04 order denying reconsideration, the court threatened Petitioner with
sanctions for raising the issue and the lack of impartiality it implied. App.6-7. App.5, note 6.
3. On 3/9/04, and after extensive meet and confer with Kaiser defendants, petitioner filed
a motion to strike Kaiser defendants answer for, inter alia, failure to do a reasonable inquiry
before answering and failing to admit facts in their possession, App.8-9 (excerpts from motion),
and on 3/26/04, a motion for discovery sanctions for, inter alia, Kaiser’s persistent violations of
the discovery rules and the court’s case management order, inter alia, App.10-12. On 4/12/04
Kaiser defendants sent a letter to the judge claiming that petitioner’s motion for sanctions was
“in essence a discovery motion,” and stating that “Kaiser defendants are ready to oppose the
motion on its merit, unless otherwise directed by the court.” App.13-14. On [ ] the judge
“terminated” petitioner’s two pending motions without full briefing or a hearing on the merits of
the motions, and without notice or hearing to petitioner regarding the judge’s decision to
“terminate” them. App.15-16.
4. After the judge had failed to respond to petitioner’s Standing Order 2 letters for
discovery relief prescribed by the judge’s 4/27 Order, petitioner filed a letter-motion on 9/19/04
moving for a stay for | ason that the judge had exhibited a lack of impartiality, and had
violated petitioner’s due process and procedural rights during the course of the proceedings and
had prejudiced him and left him unprepared for summary judgment in spite of his diligent efforts
in pursuit of discovery. App.17-18. The court did not respond to this letter-motion.
5. In its summary judgment order the judge stated as an undisputed fact in support of its
disposition that the visitation restrictions were based in part on Jensen/Wells “genuine concern”
for Petitioner’s mother. App.19 (Order at 33). While ignoring petitioner’s pleadings and direct
evidence and the justifiable inferences supporting them that their concern was not genuine, ). €.g.
App.21-22 (e-mail of Jensen/Wells’), on the basis that it was purported hearsay, App.20 (Order
at 34, the judge in contrast, cited defendants’ hearsay concerning petitioner’s purported conduct
and treated it as true in support of its disposition. App.20 (order). App.23 (Mostrales’ letter).
App.20 (order). The judge also wholly failed to consider any of petitioner’s pleaded facts of the
neglect of his mother’s personal and health care, App.24-28 (SAC {] 14-22 and sednuiitn q8
verifying the facts), or any of the evidence supporting them as evidence showing that
Jensen/Wells ‘‘genuine concern” and Mostrales’ hearsay allegations of petitioner’s “behavioral
problems” were pretexts for retaliation or discrimination.
6. In the first paragraph of his summary judgment order, the judge made a comment
involving the length of the proceedings and the volume of the filings. App.29. The “intermediate
appeal” was based on the failure of the first judge’s failure to treat the factual allegations of the
complaint as true and draw all reasonable inferences in petitioners favor which the defendants
improperly influenced her to make. App.30 (Order). App.31 (petitioner’s motion before
dismissal). After remand the defendants proposed to strike (“redact”), inter alia, petitioner’s
verified allegations of the neglect of his mother’s personal and health care without briefing.
App.32. After reassignment, all the defendants failed to properly respond to petitioner’s requests
for documents and information and engaged in persistent violations of the federal rules and
continued misrepresenting petitioner’s pleadings in their motions. This conduct required
petitioner to respond and distracted him from preparation for triad.
In the last paragraph of his order the judge stated his opinion that the “heart” of the
lawsuit was petitioner’s despondency over the state of the relationship with his family, and that
his motivation for bringing the suit was “vengeance.” App.33-34. The judge’s opinion is not
consistent with petitioner’s declaration verifying the neglect of his mother’s personal and health
care he alleged, nor is it consistent with his declaration verifying his concern for and sense of
duty to his mother. App.35 (declaration at 414)
7. Petitioner raised the issue of the unfair conduct of the proceedings in the court of
appeals in his proposed oversize brief, and in a request for judicial notice, App.36 (excerpt from
brief and req. for jud. not.), and mentioned the prejudice accruing to him in his appellant’s
brief, App.37 (excerpt from brief), when leave to file the proposed oversized brief was denied.
ARGUMENT
Legal Standards: Due process requires an impartial decision maker. Aetna Life
Insurance Co. v. Lavoie, 475 U.S. 813 (1986). In Re Murchison, 349 U.S. 133, 136 (1954).
federal law and judicial canons of ethics require that federal court proceedings have the
appearance of fairness and that the judge “be faithful to the ton." 28 USC § 455(a). Canons
2(A) and 3(B)(2). App.pg.!. Judicial “expressions” during a proceeding may well be based on
extrajudicial knowledge or motives, and evidence of lack of impartiality may arise from the
proceedings themselves by “wrongful” or “inappropriate” comments or opinions and
dispositions of a judge during the course of the proceedings that were undeserved. Opinions
formed by a judge during a proceeding that evidence “deen-scated favoritism or antagonism that
would make fair judgment impossible”’are grounds for disqualification or reversal. Litekey v.
United States, 510 U.S. 540, 545, 550-52, 555 (1994) (emphasis in original). Section 455 (a) and
(b)(1) imposes on a judge the duty to recuse himself sua sponte whenever “his impartiality might
reasonably be questioned,” or when he has a personal bias or prejudice concerning a party.
Summary of Argument: Lack of impartiality by the judge in this case is evidenced by
the Judge’s dispositions and judicial expressions about petitioner during the course of the
proceedings that were wrongful and inappropriate because they were undeserved and
demonstrated a lack of impartiality and failure to be faithful to the law pursuant to a
predisposition favoring opposing parties. This court has the jurisdiction and discretion to hear the
issue of the district court judge’s lack of impartiality, because petitioner raised the issue in the
district court before the judge’s summary judgment decision and the judge failed to respond to it,
and raised the issue in the court of appeals and that court failed to respond to it. This court also
has the inherent and supervisory powers and duty to review the issue sua sponte.
1. The district court judge’s comments in its order dismissing petitioner’s claims
against Jensen/Wells shows that he failed to properly consider petitioner’s pleadings, and
demonstrated his partiality to opposing parties’ version of the facts expressed in their
motions, and a closed mind to the pleadings. See citations to Appendix at Statement of Facts
Material to the Questions Presented (“Facts”) at | supra.
Jensen/Wells’ motion misrepresented the pleadings, and the judge’s comments in its
order indicated that he had adopted those misrepresentations, and petitioner’s factual allegations
of his complaint that alleged and provided direct and circumstantial evidence of the improper
motives of Jensen/Wells and other defendants of retaliation and disability discrimination in the
form of detailed factual allegations of the neglect of his mother’s personal and health care, the
close proximity of time between Petitioner’s reports of that neglect and the adverse actions taken
against him by Jensen/Wells, and statements by Jensen/Wells and other defendants that
Petitioner was “mentally unstable” and “mentally ill.” No reasonable judge could have possibly
or properly treated Jensen/Wells’ misrepresentation of the pleadings as true, nor considered
Jensen/Wells’ motives as pure if Petitioner’s allegations of the neglect of his mother’s personal
and health were properly treated as true.
The circumstances show that the judge failed to be faithful to the law requiring him to
consider the issues raised by the pleadings and treat the pleadings as true and draw all reasonable
inferences in the pleader’s favor. The judge’s failure to be faithful to the law properly would
cause any reasonable person with a knowledge of all the facts and circumstances to have
reasonable cause to question the judge’s impartiality. 28 USC § 455(a). Moreover, the judge’s
disposition was a wrongful and inappropriate “backdoor” judgment on petitioner’s essential
pleaded issue of retaliatory motive and intent that was undeserved. Liteky, supra at 550.
2. The judge improperly and undeservedly threatened petitioner with sanctions
shortly in his order responding to petitioner’s motion requesting reconsideration of the
judge’s failure to consider the pleaded facts, evidence, and proper inferences of
Jensen/Wells’ improper motive and intent. See Facts at 2 supra.
—
The judge’s order denying Petitioner’s motion for reconsideration wholly ignored
Petitioner’s specific request that the court reconsider its failure to consider Petitioner’s factual
allegations and the evidence supporting them that Jensen/Wells and the other defendants acted
with retaliatory or discriminatory motive and intent. It was unreasonable for the judge to fail to
reconsider the matter, and if he had, he would have had to admit that these facts were the
elements of joint action that he considered to be missing. Instead of stating that “plaintiff's
siblings merely expressed their views to state officials, in the hopes that they would agree,” the
6
judge would have had to state that “plaintiffs siblings expressed their retaliatory and
discriminatory allegations against plaintiff to state defendants, and state defendants corruptly
agreed with them.”
The judge’s threat of sanctions was wrongful and inappropriate because it improperly
threatened Petitioner for expressing his procedural and due process rights. The judge’s threat of
sanctions would cause any litigant to become “overawed, frightened and confused” by the
judge’s failure to follow the law and making intimidating threats when his failure to do so was
pointed out. Gardiner v. A.H. Robbins Co., Inc., 747 F.2d 1180, 1193 (8"" Cir. 1984).
3. The judge effectively, and improperly and undeservedly carried out his sanction
threat shortly after issuing his threatening order, by his improper ad hoc “termination” of
petitioner’s motions for relief from Kaiser defendants’ abusive litigation tactics, and by
improperly ignoring Petitioner’s subsequent requests for discovery relief pursuant to his
order. See Facts at 3 supra.
-Under the federal rules and due process principles, petitioner was entitled but did not
receive a hearing on the merits of his motions, nor was he given an opportunity to be heard on
the merits of his Standing Order 2 letters for discovery relief. Moreover, his due process rights
to notice and a hearing before the termination of his motions, and -nial of his right to be heard
on his request for discovery relief were violated. Gardiner supra at 1190-92 (due process
required before depriving litigant of constitutional, or procedural right). /d. at 1193 (due process
required before imposing sanctions).
Moreover, there is no evidence that the motions and letters requesting discovery relief
were not justified, instead there is ample evidence that they were, and the judge decided the issue
of the termination of his motions on the basis of a conclusionary misrepresentation of petioner’s
motions and the circumstances giving rise to it by Kaiser defendants. The judge by terminating
Petitioner’s motions, and failing to respond to Petitioner's letters requesting discovery relief
effectively ratified the Kaiser defendants’ improper conduct and effectively served notice to
Kaiser and to the other defendants that they could do so as well. Petitioner was thereby denied
his rights to discovery of relevant and unprivileged information, denied his procedural and due
process rights, and deprived of the judge’s reasons for the denials for purposes of appeal and
review. Gardiner at 1193.
By his dispositions, the judge demonstrated that he would hear only the evidence that
Kaiser defendants were willing to provide as part of their defense in their motion for summary
judgment, regardless of petitioner’s rights to discovery of relevant evidence to prove his claims,
and petitioner’s right to have the court receive and consider it, as well as the court’s duty to do
so. FRCP 1. Canons 2(A), 3B(2) and 3B(7). Goldberger v. Goldberger, 624 A.2d 1328, 1332
(Md.App. 1993) (in motion for recusal trial court’s statement indicating that no witnesses would
be heard other than parties was held to be particularly injudicious because “[t}he trial court's
function is to hear witnesses”). In Re Eastmoore, 504 So.2d 756, 757-58 (Fla. 1987) (The
public can have little confidence in the impartiality of a decision when the litigant is cut short in
the presentation of her case and the decision maker’s demeanor bears all the indica of prejudice
and a closed mind”) (citing Canon 3).
The judges disposition on these matters was wrongful and inappropriate because the
denial of Petitioner’s rights was not deserved, prejudiced Petitioner, and was contrary to the law.
The termination was effectively a sanction for Petitioner's assertion of his rights to fair
procedures for which Petitioner did not receive the process due. The judge’s dispositions,
therefore, exhibit a pervasive bias and prejudice that constitute a denial of the right to an
impartial tribunal. Liteky supra at 545, 550. Gardiner at 1191-93.
4. Petitioner’s letter-motion filed in response to the judge’s termination of
Petitioner’s motions and for the judge’s failure to respond to his Standing Order 2 letters
8
seeking discovery relief was effectively a motion for recusal for the judge’s fack of
impartiality, to which the judge should have but did not respond either by recusing himself
sua sponte or by hearing the motion. See Facts at |, 2, and 3 supra.
Petitioner’s letter-motion was labeled as a motion to stay, but the reason for the request
for a stay was the judge’s violation of petitioner’s constitutional and procedural rights, arising
from the judge’s evident lack of impartiality. The judge’s failure to respond to the motion was
itself a violation of petitioner's due proce.» and procedural rights, and was an undeserved
disposition that demonstrated such a pervasive bias and prejudice as to deprive petitioner a
hearing before and impartial judge. Canon 3(b)(7). Liteky supra at 545, 550. Moreover, the
judge’s failure to respond effectively prevented meaningful review of the issues raised by
Petitioner’s motion on appeal, and the effects of the judges bias had become so pervasive as to
prejudice any review of the merits of the case.
On the basis of the judge’s failure to respond when the issue of the judge’s lack of
impartiality was raised by petitioner before summary judgment, this court has the discretion and
duty to consider this issue. Cutee at 1190-91.
5. The judge improperly carried forward its improper predisposition on
Jensen/Wells’ motive and intent into its summary judgment disposition. See Facts at 1, 2,
and 4 supra.
The judge’s statements in its order denying leave to amend as to Jensen/Wells showed
that it had unlawfully and prematurely decided the issue of who to believe and the merits of the
case in regard to opposing parties’ motive and intent and the neglect of petitioner’s mother
before any evidence was presented, and as if to prove its predisposition injudiciously ignored the
evidence clearly contrary to its predisposition when it was properly presented by petitioner on
summary judgment.
The judge ignored multiple statements by defendants and Jensen/Wells, including
9
admissions by Jensen/Wells and defendants that indicated that their conduct was motivated by
disability discrimination or by retaliation against petitioner in response to his reports of the
neglect of his mother. In order to justify ignoring this material evidence the judge injudiciously
failed to follow the law by calling it “inadmissible hearsay,” even though the defendants’ and
Jensen/Wells own contemporaneous statements evidencing their state of mind were involved,
and even if they were hearsay are specific hearsay exceptions. These are rules of evidence
petitioner had every right to rely on for evidence in support of his claims, and which denial in
this case rises to a constitutional violation. Moreover, the judge unevenly applied its disposition
on hearsay and demonstrated its lack of impartiality by citing hearsay of defendant Mostrales in
support of its disposition against petitioner.
Since the judge’s evidentiary disposition involved evidence contrary to what the judge
had previously wrongfully and prematurely decided, it evidences that the judge deliberately
violated the law pursuant to his predisposition favoring opposing parties. FRCP 1. Canons 2A
and 3B(2). Gardiner supra at 1192 (“When a judge passes judgment on parties before him
without hearing all of the evidence and without a trial, we deem such comments highly
injudicious”). Jd. at 1193. In Re Eastmoore supra.
The judge also carried over its predisposition involving petitioner’s pleadings of
defendants retaliation and discrimination against him in response to his reports of the neglect of
his mother by wholly ignoring Petitioner’s allegations of the complaint including Petitioner’s
detailed allegations of the neglect of his mother’s personal and health care, Petitioner’s
declarations including his declarations verifying the facts of the complaint, and Petitioner’s
considerable documentary evidence of the neglect of his mother’s personal and health care that
was the issue central to all his claims against all parties.
10
The fact that the judge ignored Petitioner’s pleadings and the evidence supporting them
was highly injudicious, appeared to and had the effect of a sua sponte motion to strike the
allegations without a hearing, and clearly indicated the judge’s lack of impartiality. Canons 2A
and 3B(2). Liteky, Gardiner, Goldberger, In Re Eastmore supra.
6. The judge’s lack of impartiality is evidenced by the judge’s comments obliquely
charging Petitioner with the fault for the length of the proceedings and the volume of the
filings, and stating that the “heart” of the case was petitioner’s despondency over the state
of his relationship with his family and that his motivation for bringing this action was
vengeance. See Facts at 6 supra.
In his opening paragraph of his summary judgment the judge stated that “[a]fter four
years of contentious litigation, an intermediate appeal to the Ninth Circuit and a literal mountain
of filed documents (occupying eleven large folders), this case has finally reached its final
summary judgment stage.” Considering the judge’s actions set out above, along with the rest of
the judge’s order and the judge’s “opinion” set out below, there is no doubt that this statement
was intended to infer that the circumstances of the proceedings and the volume of the files were
somehow petitioner’s fault. This statement was undeserved and prejudiced Petitioner, because
the real cause of the delay and the “mountain” of documents clearly lies elsewhere. The judge
misrepresented by omission the fact that the “intermediate appeal” was reversed and remanded
on the basis that the first judge in the case failed to treat the factual allegations of the complaint
as true, a fact that involved a considerable and oppressive burden to Petitioner and which was not
his fault.' Instead, fault for a considerable portion of the volume of the filed documents,
therefore, rested squarely in the hands of the first judge and the opposing parties who had
In writing his first appellant's brief, petitioner repeatedly and up to the last minute worked himself to exhaustion
pondering the judge's reasoning without comprehending until it occurred to him as an epiphany that the judge had
failed to treat the factual allegations of the complaint as true. It was an epiphany because, up to that point, Petitioner
had a faith in the law and the fairness of the judicial system that had to be broken to recognize the judge’s failure to
follow the law.
11
influenced her to make a wrongful decision.
The judge’s statement also disingenuously misrepresented his lack of fair and impartial
management of the case that was a significant determinate of the volume of the filings. By
failing to hear and decide the issues in dispute at the case management conference the judge
ratified the abuses that already had occurred and gave its tacit approval for their continuation.
Under the circumstances, Petitioner was obligated to file documents seeking relief and devote
much space in his filings in fruitless protest about the oppressive and _ self-serving
misrepresentations by opposing parties of the pleaded facts, and in seeking relief from discovery
abuse that are merely illustrated above. Petitioner’s own un-filed papers consist of a large
volume of documents directed at fruitless efforts to meet and confer. Much of the volume of the
filed documents derived from defendants’ oppressive conduct and the fault for it lies with them
and the judge, not with petitioner.
The judge’s opening paragraph statement is therefore undeserved and disrespectful of the
oppressive and sometimes extreme difficulties of five years of litigation by a person with
significant health problems who began the litigation with no schooling in the law and naive faith
in the legal system, and who faced and suffered significantly from abusive litigation practices
while the judge refused to hear or act on Petitioner requests for relief when he brought it to the
judge’s attention. The judge’s comment was wrongful and inappropriate because it failed to arise
from the judge’s fair consideration of both sides of disputed issues. In such a context, the judge’s
statement was an undeserved innuendo that exhibited the judge’s pervasive bias and prejudice,
and prejudiced Petitioner in the reviewing courts. Gardiner supra at 1192, Liteky supra at 545.
In the closing paragraph of his summary judgment decision ihe judge stated his “opinion”
as follows:
On a side note, after four years of litigation, massive amounts of paper and
numerous hours expended by all involved, the court is of the opinion that at the
heart of this complicated lawsuit is a man despondent over the state of his
relationship with his immediate family. It is the court’s sincere hope that these
differences are eventually healed or, at least ameliorated. But its is not the job of
the court to provide vengeance or leverage to siblings involved in family disputes.
The court believes that efforts to repair his tattered relationships will yield Jensen
more promising results than litigation.
This statement of opinion is undeserved, prejudicial to petitioner, and incredibly
disrespectful of the lew and of Petitioner’s sense of duty to his mother, and the personal
sacrifices Petitioner had to make to come to her aid. The judge’s opinion is necessarily based on
failing to follow the law of the legal standards of review on summary judgment. The judge
unlawfully failed to consider the pleaded issue of the neglect of his mother’s personal and health
care as Petitioner’s motivation for his coming to his mother’s aid as well as Petitioner’s
declarations and other evidence to that effect, and unlawfully drew an unsupported and
unsupportable inference favorable to opposing parties. Moreover, no party provided evidence or
alleged that Petitioner was despondent over his relationship with his siblings, or that he was
motivated by vengeance, nor could they. .
The Judge’s opinion was wrongful and inappropriate because it was undeserved, and
because it was arrived at in violation of the law and indicated the judge’s willingness to violate
the summary judgment standards of review in deriving his opinions. In the context of a summary
judgment motion and as the non-moving party, Petitioner’s integrity, and good faith in bringing
the suit should not be an issue considered by the judge, or if it is it should be assumed. The fact
Petitioner's decision to file a federal lawsuit was based on his research showing that their was no effective state
oversight or remedy for institutional neglect of the elderly because “supposedly competent institutions designed to
protect and vindicate the rights of [the institutionalized elderly] have consistently failed to do so.” App.38 (4 85 of
all versions of complaint). After making the decision, petitioner literally asked himself “why me” at the burden the
decision imposed. Indeed, why ? The original complaint included a request for injunctive relief for his mother.
App.39 (FAC 111(a)). Petitioner rushed to file the complaint because he feared that his mother would die as a
consequence of the neglect of her health care. Any reasonable person would agree that is what occurred.
13
that it wasn’t indicates that the judge’s opinion of Petitioner was a wrongful and inappropriate
factor in the judge’s decision making and revealed the judge’s personal bias and prejudice and a
high degree of antagonism toward Petitioner such as to make a fair judgment impossible. Liteky
at 550, 555. Moreover, the judge’s opinion amounted to a gratuitous and undeserved personal
attack on Petitioner’s good name, reputation, honor, integrity and good faith that the judge had
no right or lawful judicial reason to make, and for which Petitioner was denied due process.
Gardiner supra. In such a context the judge’s opinion exhibited a pervasive bias and prejudice.
Id.
7. This court has jurisdiction to hear the lack of impartiality issue because the issue
was raised but not heard in the district court and in the court of appeals. See Facts at 4 and
7 supra.
Petitioner raised the issues of the judge’s comments and dispositions that indicated the
judge’s lack of impartiality in his proposed oversize brief, in his request for judicial notice of the
sections of the oversize brief that dealt with those issues, in his appellant’s brief, and in his
motion for rehearing. The court of appeals, however refused to consider it. On the basis that the
issue was effectively raised but not heard in the lower courts, this court has discretion and duty to
hear the issue of the lack of impartiality and pervasive bias and prejudice in the district court.
This court also as the discretion and duty to hear the issue sua sponte. Gardiner supra at 1190-
91,
CONCLUSION
The totality of the circumstances and the examination of the words and actions of the
district judge as a whole show that he had a “deep-seated favoritism or antagonism” against
Petitioner “that would make fair judgment impossible.” Moreover, the judge’s failure to hear and
act on Petitioner’s letter-motion raising the issue of his lack of impartiality, and the judge’s
comments involving innuendo and opinion about Petitioner that were undeserved are by
themselves sufficient wrongful and inappropriate conduct to show for that Petitioner was denied
his 14" Amendment rights to an impartial tribunaJ. Moreover, the conduct of the proceedings in
this case cannot stand up to public scrutiny. Any reasonable person with a knowledge of the
facts would believe that the proceedings were fundamentally unfair to Petitioner.
The decision of the district court on the merits of Petitioner’s claims also cannot stand up
to public scrutiny. Any reasonable person, and any reasonable judge would consider that the
district judge’s failure to hear Petitioner’s allegations and considerable evidence of the neglect of
his mother’s personal and health care and of the defendants’ retaliatory and discriminatory
motive and intent was unfair and unreasonable. If this evidence is actually considered, any
reasonable person and any reasonable judge would believe that the case was wrongfully decided.
The dispositions of the federal courts in this case bring the fairness of the federal
judiciary into serious question. This court cannot have the discretion to fail to hear and act on
this case.
REQUEST FOR RELIEF
This court should rehear this case and issue a summary order vacating the judgment on
the basis that the proceedings in the district court were unfair in fact, and that the proceedings in
this case have the appearance of unfairness.
Respectfully submitted by, Tom Jensen,
Petitioner in propria persona
P.O. Box 614
Oakland, CA 94604
15
INDEX TO APPENDIX
Opinions and Orders:
The full text of the Opinions and Orders and Second Amended Complaint are set out in
the petition for writ of certiorari.
Federal Statutory Provisions:
ee as tee ID prc cencvedusenetduddebuskassseusecsaunancuuneseses App.iv
Federal Rules of Civil Procedure:
Model Rules of Judicial Conduct of the American Bar Association:
NIT SINE silehspouiininies aavisnpunpabadasebsednadanensisuned: ceidedneneasecabscdouninenaininn App.iv
a sce lineata tial hhc tek ia ikea creel eee cee ee ee App.iv
UIT ITT cdueneiiinun dass ceseeubiatiienadandaxboudsdsaeneidaniatandacaedcaikdenadaainanat App.v
Other Relevant Materials:
Pg.27, 44 89 and 90 of (proposed) 3 amended complaint (received 6/11/03) ...... App.1
Pp P
Pg.7 of Jensen/Wells 7/10/03 opposition to petitioner’s motion to file 3° amended
Ce re Cy TD Se snncennccncaussnviderctboncdcncesnsqasadisovespneneninish App.2
Pg.18 (denying leave to file 3 amended), of Judge Walker’s 7/29/03 order
ee ee Br I dinicncisnniccnipeniciuencaudonisakudaasetnebiceniasedscedasends App.3
Pgs.7-8 of Petitioner’s 9/23/03 motion for reconsideration (Doc.No.253) ......... App.4-5
Pgs.3-4 (threatening sanctions) of Judge Walker's 1/5/04 Order (Doc.No.278) .. App.6-7
Pgs.5-6 of Petitioner’s 3/9/04 motion to strike Kaiser’s answer (Doc.No.295) ... App. 8-9
Pgs.5-7 of Petitioner’s 3/26/04 motion for discovery sanctions against Kaiser
EE ichtcnisdraeeuscbasdisnidissreivaiebsameesneroaunaicdsniaiaaineilenmndin App. 10-12
Kaiser’s 4/12/04 letter to Judge Walker (concerning petitioner’s pending
NE INGEN IIT vnidcicdeutdiinauenterevedubtuddeneadéukumipehababsmcsiuneewene App. 13-14
Judge Walker’s 4/27/04 Order “terminating” petitioner’s motions
(Doc.N0.307).........2--ccccceccccecececccenescececscsceeessececeesecsssreaersesscscereces App. 15-16
Petitioner’s 9/14/04 letter-motion raising the issue of Judge Walker’s lack
of impartiality and requesting a stay to settle pending discovery disputes
(DOC.NO.321) ...,cccscrccseccsecccesccessseccscgeereesessesssesccesenecscnsensesenenseres App.17-18
Pgs.33-34 of Judge Walker’s 1/31/05 summary judgment (Doc.No.389) ...... App.19-20
Jensen/Wells’ 6/7/99 e-mail message stating state of mind concerning
Petitioner and his reports of the neglect of his mother’s care (ER 71) ........... App.21-22
Exhibit C, pg.3 of the Second Amended Complaint (defendant Mostrales’
statement concerning petitioner) (Doc.No.311) ...........ececeeee rene eee eee eee ee ence ees App.23
Pgs.5-7, 4] 14-22 of the Second Amended Complaint (petitioner’s factual
allegations of the neglect of his mother’s personal and health care)
(Doc.No.311)
Petitioner’s 9/7/04 declaration verifying Jf 11-74 of the Second Amended
Complaint (q 14) (ER 183-184, Doc.N0.343) ..........ccee ee eeee nee ee eee eeeeee ee ees App.27-28
Pg.1 of Judge Walker’s summary judgment order (statement concerning the
length of the proceedings and the volume of the files) (Doc.No.389) .............+++ App.29
Pg.2 of the Memorandum decision of the court of appeals filed in the district
court on 7/1/02 (ER 1, Doc.No.136)
Petitioner’s Second Reply to Motions to Dismiss in Judge Ilston’s court
(Doc.No.58)
Pg. 10 of the transcript of the case management conference in the Illston
Court (concerning State and Sweet Home defendants proposal to strike
(“redact’”’) petitioner's pleadings of his allegations, inter alia, of the neglect
of his mother’s personal and health care (ER 4, Doc.No.138) .............0eeceeeeees App.32
Pgs.34-35 of Judge Walker's summary judgment order (containing Judge
Walker’s opinion of petitioner) ..........cecceceeceeee reece ne eeeeneeneeeeneeeseeenennes App.33-34
Pg.4 of petitioner’s declaration in support of petitioner’s reply to Kaiser
Defendants’ opposition to his motions requesting reconsideration of
His motion to strike Kaiser’s answer and for discovery sanctions and in
support of petitioner’s opposition to to defendants’ motions for summary
judgment (ER 158, Doc.No.351) .........ccccceceeceeeeeeeeeeenenaeneeerenseeseseesegens App.35
Pg.42 of petitioner’s proposed oversized brief filed in the court of appeals, also
filed as part of request for judicial notice (concerning unfair proceedings in
the district court and the prejudice it caused petitioner) .................... 2. ec ee eee App.36
Page 4 of Appellant’s brief (concerning the improper conduct throughout the
Proceedings causing prejudice tO petitioner) .............cccceeeeeeeeererseeerseeeeeeeees App.37
4 85 of Second Amended Complaint (same in all versions) (Doc.No.311) .......... App.38
Pg.36, | 112(a) of the original filed complaint (concerning request for
preliminary injunction for petitioner’s mother) ............ccececececceeeeereeeeeeeesrees App.39
Federal Statutory Provisions
28 United States Code §§ 455(a) and (b){1):
(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed facts concerning the proceedings ...
Federal Rules of Civil Procedure
Rule 1: These Rules govern the procedure in the United States district courts in all suits
of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the
exceptions stated in Rule 81. They shall be construed and administered to secure the just,
speedy, and inexpensive determination of every action.
Model Code of Judicial Conduct of the American Bar Association
Canon 2(A): A judge shall respect and comply with the law and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary
Canon 3(B)(2): A Judge shall be faithful to the law and maintain professional
competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of
criticism.
Canon 3(B)(7): A judge shall accord to every persun who has a legal interest in a
proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not
initiate, permit, or consider ex parte communications, or consider other communication made to
the judge outside the presence of the parties concerning a pending or proceeding ...
ee
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PSP RRBEBR EB Sea a AE SS = 5
causing the visitation restrictions to be imposed as an alternative in the interim. Paragraphs 63, 64,
75(<), 87(d), 93(h); and Exhibit D, pgs.2-3 are adopted and incorporated herein by this reference.
Paragraphs 14-22, 31-34, 39, 41, 43, 46-48, 52, 53, 56, 57, 59, 60, 64, 65, & 75 (including
subparagraphs (a) — (f)); and Exhibits A, C, and D are adopted and incorporated in this paragraph by
this reference as support of these allegations.
89. The “Visitation Restrictions for Tom Jensen,” were issued and imposed, and the
investigations by the STATE DEFENDANTS were deliberately delayed, without notice to the
plaintiff, without a hearing, without valid legal authority, without a right of appeal, without just cause,
with discriminatory purpose, motive, intent, and effect, and in retaliation for plaintiff's reports of
neglect of his mother’s care and his advocacy for its correction. Paragraphs 39, 53, 58, 59, 63-65, 71-
75 (including subparagraphs (a) — (f) of 4 75), 90, & 91(d)); Exhibits. A, C, and D; and Claim Ii are
adopted and incorporated in this paragraph by this reference as support of these allegations.
90. STATE DEFENDANTS, with deliberate indifference to plaintiff's constitutional rights,
recklessly and without due process, acceded to fraudulent, defamatory, pretextual, and retaliatory
allegations against plaintiff, which were made to them by SWEET HOME and FAMILY
DEFENDANTS, and which were meant to discredit, and defame him and to discredit his reports of
neglect of his mother. The reliability of the allegations against plaintiff were not questioned nor given
scrutiny, while plaintiff's reports and evidence of neglect of his mother’s personal and health care, and
retaliation against him for reporting and advocating for its correction were disregarded on the basis
that he was allegedly “mentally ill,” “mentally unstable,” and had “mental problems.” Paragraphs 39,
45, 47, 48, 51, 53, 56, 59, 64, & 75 (including subparagraphs (a) — (f)), & 91(d); and Exhibits A, C,
and D are adopted and incorporated in this paragraph in support of this allegation by this reference.
91. The acts pursuant to the agreement, meeting of the minds, and conspiracy among these
defendants are the following:
(a) Unreasonably, unjustly, and unlawfully barring plaintiff from the defendant SWEET
HOME ONE CARE FACILITY for five months in violation of state regulations while the STATE
DEFENDANTS’ investigations were deliberately delayed in violation of state law. Paragraphs 46, 52,
APP. 1
" cor ara
C-00-3261 VRW THIRD AMENDED COMPL.
YI YD
LLY
180 GRAND AVENUE, SUITE 1500Q~eAKLAND, CALIFORNIA 94612 -3741
r
& Wood,
Morton, Lulc
TELEPHONE: 310/444-5522
had unduly delayed and delay would prejudice the defendant, and where plaintiff's
contention on appeal seemed hollow and akin to bad faith.
E. The First Claim for Relief Does Not State an Unruh Act
or Section 1983 Claim Against Beth Wells anid Peter Jensen
By way of the Proposed Third Amendment Complaint, Plaintiff seeks to
reinvolve his siblings, the children of Marguerite Jensen, as Defendants in this action
|| for purported violations of Plaintiff’s ‘civil, constitutional and statutory rights pursuant to
California Civil Code §51 and 42 U.S.C. $1983. Notwithstanding Plaintiff’s assertion
of "facis" and the requirement at this procedural stage that the Court accept as true all .
|] well-pled facts, nonetheless, BETH WELLS and PETER JENSEN respectfully submit that
Plaintiff has failed to plead and cannot plead "facts" that would subject the FAMILY
DEFENDANTS to liability under California Civil Code §51 or 42 U.S.C. §1983. Plaintiff
has failed to allege sufficient facts to plead a viable claim against.BETH WELLS and
PETER JENSEN under 42 U.S.C. §1983. The gist of Plaintiff’s allegations against the
FAMILY DEFENDANTS is their purported communications with the other defendants
|| regarding their concerns as. to Plaintiff's conduct which they believed to be disruptive
and detrimental to the peace and proper care of their mother. In an effort to establish
tete FAMILY DEFENDANTS’ participation in a purported conspiracy to violate Plaintiffs |
access to SWEET HOME and Marguerite Jensen, Plaintiff alleges that the FAMILY
DEFENDANTS effected "a meeting of the minds" with the other Defendants that Plaintiff
was "mentally ill,” "mentally unstable,” and had "mental problems. * Plaintiff then
alleges that:
STATE DEFENDANTS, with deliberate indifference to Plaintiff’s
constitutional rights, recklessly and without due process, acceded to
fraudulent, defamatory, pretextual, and retaliatory allegations against
Plaintiff, which were made to them by Sweet Home and FAMILY
DEFENDANTS, and which were meant to discredit, and to defame
him, and to discredit his reports of neglect of his mother."
(Proposed Third Amended Complaint, paragraph 90.]
//
7 APP. 2.
Points & Authorit:s in Opposition to Pitf's Mtns to File 3rd Amende: Eats ‘or Reconsideration ,
Ce ee
United States-Vistrict Court
For the Northes.__ trict of California
agents effecting a constitutional deprivation. Johnson v
Knowles, 113 F3d 1114, 1119 (9th Cir 1997).
5/14/03 Order (Doc #224), at 8-9.
Jensen fails to cure the deficiency of his earlier
proposed pleading. Jensen has added allegations and exhibits
indicating that Peter Jensen and Beth Wells, at times acting
through their agent Don Wells, suggested certain visitation
restrictions to state officials. Prop TAC, qq 75(a), 87, Exh D at
1-2. But even the attached exhibits, if taken as true, acknowledge
that plaintiff’s siblings merely expressed their views to state
officials in the hope that they would agree. To the extent the
ultimate decision distinctly remained with public officials,
Jensen’s siblings were therefore not the cause of plaintiff’s
purported constitutional deprivation. See Prop TAC, Exh D at 2
(“Don and I have reworked the restrictions so that we think they
will be approved by CCL. Of course, they must satisfy your
concerns.”); id, Exh D at 3 (letter by staff attorney from
California Department of Social Services rejecting proposed
restrictions by Peter Jensen).
Plaintiff has failed to state factual allegations to
support a claim that his siblings were willful participants in the
particular state action effecting a constitutional deprivation.
While plaintiff’s family members may have expressed their views and
preferences to state officials, the proposed TAC fails to allege
that Peter Jensen and Beth Wells were “joint” participants in the
decision to impose the visitation restrictions at issue.
Accordingly, leave to amend plaintiff’s section 1983 claim to add
his siblings is DENIED.
18 epiat APP, 3
Proposed SAC, TAC 4 91(d). Additionally, as plaintiff has alleged, the visitation restrictions would
ae
not have been approved and imposed by state defendants but for (1) State defendants’ ratification,
without the process due, of these false and discriminatory allegations made by Peter Jensen and Beth
Wells pursuant to their improper motives of retaliation and discrimination, Id fj 89, 90. (2) State
defendants’ policies that favored and had the effect of favoring care custodians who make false and
retaliatory allegations against persons reporting neglect and abuse of the elderly in California long-
term care facilities. Id. 9] 92, 93. and (3) State defendants’ own discrimination against plaintiff on
the basis of disability, Id 91(d).
0 coy HA Wn ff & NY
The foregoing facts give rise to the reasonable inference at the pleading stage that Peter
——
So
Jensen and Beth Wells acted pursuant to a corrupt agreement with State defendants to violate
plaintiff's due process rights as plaintiff has alleged, rather than “merely express[ing] their views to
oe
oe
state officials in the hopes that they would agree.” The corrupt agreement or conspiracy and acts
— mee
Ww NN
pursuant to the agreement is the “something more” that shows the joint action constituting state
action by Peter Jensen and Beth Wells. > See Howerton v. Gabica, 708 F.2d 380, 383 (9" Cir. 1983)
—
py
(“One way the ‘joint action’ test is satisfied is if a conspiracy is shown.”).
—_—_
nn NA
B.
THE COURT HAS WRONGFULLY DEPENDED ON OPPOSING PARTIES’ FACTS OUTSIDE
THE PLEADINGS TO SUPPORT ITS DECISION OF LACK OF JOINT ACTION
—_
oo 8 lS
The court’s decision reaching the conclusion that “{bJut even the attached exhibits, if taken as
—
Oo
true, acknowledge that plaintiff's siblings merely expressed their views to state officials in the hopes
N
(>)
that they would agree,” mirrors the statement of Peter Jensen and Beth Wells that “[t]he gist of
i)
_
plaintiff's allegations against the FAMILY DEFENDANTS is their purported communications with
N
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the other defendants regarding their concerns as to Plaintiff's conduct which they believed to be
N
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2 6
disruptive and detrimental to the peace and proper care of their mother. As set out above, the
No
>
N
a)
> Conspiracy means a combination or agreement to violate or disregard the law conferring equal
liability to the co-conspirators. Plaintiff uses the words “corrupt agreement and meeting of the
minds,” and “conspiracy” interchangeably as words and phrases having the same legal meaning.
Ny NN
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C-00-3261-VRW MOTION FOR RECONSIDERATION
are. 4
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court in making its foregoing statement, wholly ignored the factual allegations of the complaint that
alleged facts and evidence of Peter Jensen’s and Beth Wells’ improper motives of retaliation and
discrimination on the basis of disability and plaintiff's arguments setting out these things.
Additionally, the appearance is unavoidable that Peter Jensen and Beth Wells made these improper
statements outside the pleadings in their opposition motions with the intention to influence the court
to make a wrongful decision of fact and law.
c.
STATE DEFENDANTS’ BELATED DOCUMENT PRODUCTION PROVIDES DIRECT EVIDENCE
THAT SUPPORTS PLAINTIFF’S ALLEGATIONS OF CONSPIRACY
The court in refusing to draw reasonable inferences of conspiracy in plaintiff's favor has
imposed an impossible barrier to overcome to attain the court’s requirements for pleading state action
by Peter Jensen and Beth Wells, and serves to reward the defendants for withholding evidence and
manipulating the rules. The court is informed of the fact that there was no record of the state
proceedings related to the visitation restrictions available to plaintiff at the time the FAC was drafted
and that he remained ignorant of the machinations among the defendants that constituted joint action
at the time the FAC was drafted, that initial disclosures by opposing parties had been delayed or not
made, and that State defendants had withheld documents plaintiff had requested. 7’ Notwithstanding
this lack of direct evidence, a corrupt agreement and meeting of the minds or conspiracy to deny
° Peter Jensen and Beth Wells could claim a good faith defense in an answer, and assert it in a
motion for summary judgment, but the defendants and the court cannot ignore the pleadings and
presume that such a defense exists on the basis of facts outside the pleadings and prematurely decide
the issue on that basis. See plaintiff's Reply to Family Defendants’ Opposition to Plaintiff's Motion
for Leave to Amend and Motion for Reconsideration with Memorandum of Points and Authorities,
Doc # 244 at pg. 5S, Ins. 4-11. Plaintiff has repeatedly complained to and warned the court of the use
of facts outside the pleadings by opposing parties. See Id., and see e.g. Plaintiff’ s Opposition to State
Defendants’ Motion to Dismiss and Plaintiff's Motion for Summary Judgment on Procedural Due
Process Claim with Memorandum of Points and Authorities, Doc # 220 at pg. 6, Ins. 14-19. The
court’s wrongful factual finding is now a specter of prejudice to plaintiff overhanging the
proceedings unfairly adding to past prejudice.
” See FAC, SAC, proposed TAC {ff 71-75, Plaintiff's Notice and Motion for Leave to Amend, Doc
# 196 at pgs. 5-8, and plaintiff's April 22, and June 16, 2003 letters regarding discovery dispute over
document production by State defendants.
C-00-3261-VRW MOTION FOR RECONSIDERATION
APP. 5
1 reconsideration under FRCP 60(b) is not a "substitute for appeal").
( y Plaintiff moves the court to grant leave to file a motion
3\| for reconsideration of its May 14 and July 31, 2003, orders.
41l Because the merits of plaintiff's motion apply only to the July 31,
5/2003, order, such order is the only one the court considers.
6|| Plaintiff's motion relies on the last two bases for
7|\ reconsideration, Civ LR 7-9(b)(2) and (3). The court considers
8]| plaintiff's contention under Civ LR 7-9 (b) (3) first.
9
10 A
t 11 Plaintiff argues that the court failed to consider
5 é 12] plaintiff's material facts and dispositive legal theories. Pl Mot
2 S 13]] (Doc # 253) at 2. Plaintiff fails, however, to bring to the
4 g 141] court's attention any dispositive legal theories or material
= 5 15 ll evidence that the court did not address in its previous order.
a ; 16] Plaintiff argues that the court failed to treat the "factual
= Sd 17|| allegations of the complaint as true and draw all reasonable
=)
18] inferences in plaintiff's favor." Id. Plaintiff does not argue,
191 nor could he, that the court disregarded the appropriate legal
20i| standard for a motion to amend. Instead, plaintiff argues that the
21]| court misapplied the standard.
22 Plaintiff's motion thus evinces a failure to understand
23 | the distinction between a claim that the court disregarded a legal
24 argument and a claim of disagreement with the court's decision. If
25] a party raises, and the court fails to address, a dispositive legal
26 argument, that party may bring a motion for leave to file a motion
( 27 || for reconsideration to allow the court an opportunity to address
28 its error. See Civ LR 7-9(b). A motion for leave to file a
; APP. 6
—s
United State” istrict Court
For the Northern wistrict of California
uo oN On AN Fe WY KH =
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f° i ee |. a > © > - ih io, Ci ©, i ~ So ° i © Se Se a |
motion for reconsideration is not an appropriate vehicle to vent
frustration with a court's order, nor is it a second chance to
raise the same arguments.
The court clearly rejected plaintiff's argument that
Peter Jensen and Beth Wells acted jointly with state officials.
Plaintiff's fervent disagreement with the court's previous order
does not provide grounds to file a motion for leave to file a
motion for reconsideration. Indeed, the Civil Local Rules state
that a party may be subject to sanctions for "repeat[ing] any oral.
or written argument made by the applying party in support of or in
opposition to the interlocutory order in a motion for leave to file
a motion for reconsideration." Civ LR 7-9(c). Repeated and
meritless motions for leave to file motions for reconsideration
needlessly slow the litigation process. Although the court finds
that imposing sanctions at this time is not appropriate, plaintiff
is admonished that "although he is * * * representing himself in
this action, he is nevertheless obligated to follow the same rules
as represented parties." King v Atiyeh, 814 F2d 565, 567 (9th Cir
1987).
B
Plaintiff also argues that evidence unavailable at the
time that the court considered plaintiff's earlier motion provides
a basis for the court to reconsider its earlier ruling.
Plaintiff's motion on this ground may more properly be construed as
a motion for leave to amend, because nothing in the court's
previous order needs to be "reconsidered" to determine whether
plaintiff's further allegations suffice to state a claim against
. APY. 7
failing to give plaintiff fair notice, and some are insufficient as a matter of law. Heller Financial, |
Inc. v. Midwhey Power Co., Inc., 883 F.2d 1286, 1294-95 (7" Cir. 1989). Wyshak v. City N |
Bank, 607 F.2d 824, 827 (9" Cir. 1979).
The foregoing insufficiencies of Kaiser defendants pleadings’ prejudice plaintiff by, inter
alia, requiring plaintiff to prove facts that should be admitted by Kaiser, causing delay, waste of time
and oppressing plaintiff. They also cause plaintiff the necessity of engaging in unnecessary
discovery, unnecessarily confuse the issues and mislead the court. FRCP 1.
ISSUES TO BE DECIDED
1. Are Kaiser defendant answers insufficient because they are not based on a reasonable
inquiry under the circumstances?
2. Are allegations in Kaiser defendants’ answer that factual allegations of the SAC are
“irrelevant” or are “legal conclusions that do require a response” proper pleadings under FRCP 8(b)?
3. Are Kasier defendants’ affirmative defenses insufficiently pleaded, and/or are they
insufficient as a matter of law?
4. Has plaintiff been prejudiced by Kaiser defendants’ answer and related conduct?
STATEMENT OF FACTS
There are two sources of knowledge and information in Kaiser defendants’ possession that
were readily available to Kaiser defendants for pleading their answer. One source of readily
available information were the documents alleged in the complaint, which include three letters from
plaintiff to Kaiser defendants (Exhibit A). The other source of readily available information were
plaintiff's mother’s Kaiser medical records including Kaiser medical records for plaintiff's mother
for the year 1998, Kaiser medical records of plaintiff's visits with his mother to defendant Bill Jue
MD, Kaiser medical records related to plaintiff's visits with Dr. Derek Jue, Kaiser medical records
related to Kaiser defendants’ contact with the Ombudsman, and Kaiser medical records related to
APP. g
C-00-3261-VRW(BZ) MOTION TO STRIKE |
-_
plaintiff's mother’s admission to the hospital with acute symptoms of urinary tract infection (Exhibit
B).'
Plaintiff's mother’s medical records were in Kaiser counsels’ possession well before they
answered the complaint and well before their answer was due . Plaintiff received the medical records
excerpted herein by personal service from then Kaiser counsel Steve Chu on or about Nov. 5, 2003 in
response to plaintiff's document requests. Kaiser’s answer was due on January 29, 2004, 14 calendar
days or ten working days after the court order denying Kaiser defendants’ motion to dismiss. Kaiser
defendants answer was actually served on February 18, 2004
Plaintiff's pleadings and Kaiser defendants’ answers concerning these sources of knowlecge
and information that Kaiser defendants failed to use for pleading purposes, which are the subject of
this motion, are of the following general categories of the evidence just enumerated.
PLAINTIFF'S PLEADINGS AND KAISER DEFENDANTS’ ANSWERS RELATED TO PLAINIFF’S
LETTERS TO KAISER DEFENDANTS
Plaintiff has pleaded and verified that he sent three letters to Bill Jue MD. SAC 4 30. Two of
the letters were identified by date, one sent to defendant Jue dated May 26, 1999, SAC 4 31, and the
other dated June 24, 1999, sent to defendant Jue, delivered in person to the Patient Representative of
Kaiser — Milpitas, and also sent to Peter Jensen and Beth Wells. SAC 4 32. The third letter was
dated September 3, 1999. Kaiser defendants admit receiving these letters. but do not admit the
contents of the letters that plaintiff has plainly pleaded.
Paragraph 26: Paragraph 26 states that “After the second visit to said defendant Bill Jue
MD, which was after Mrs. Jensen had dislodged the mucous plug from her lungs, the clear then
purulent mucous that was observed by the plaintiff was expelled by her coughing.”
' Kaiser defendants’ medical records were produced form three separate Kaiser facility sources
identified as “Kaiser Medical Center Milpitas PMG Vol 2” (clinic records for years 1998 to 2000),
“Kaiser Medical Center Santa Clara PMG Vol 1,” (hospital records for year 2000), “Kaiser Medical
Center Hayward PMG Vol 1” (hospital records years 1998, 2000) “Kaiser Medice® ~ ° "*-— >?
KFH Vol 2 (hospital records for year1998). Each set of records has a cover shee q
Xf.
numbered beginning with the number one in bold type in the lower right hand corn
6 are,
C-00-3261-VRW(BZ) MOTION TO STRIKE
17|
MEMORANDUM OF POINTS AND AUTHORITIES
ISSUES TO BE DECIDED
Have Kaiser defendants without substantial justification failed to comply with Rule 26(a) by
not providing plaintiff with required disclosures under Rule 26(a)(1)(A), (B), and (D)?
Has plaintiff been harmed by Kaiser defendants’ failure to comply with Rule 26(a) and by
Kaiser defendants’ persistent violation of the federal rules and the case management order?
Have Kaiser defendants persistently and egregiously violated Rules 11, 16(f) and 26(g) and
the court’s case management order by failing to do a reasonable inquiry under the circumstances
before filing their documents, and by serving their responses to plaintiff's document requests in the
first instance without a privilege log in violation of the court’s case management order, and in the
second instance by refusing to waive any allegedly assertable privileges and again failing to produce
a privilege log for privileges they had claimed?
Have Kaiser defendants acted willfully and in bad faith?
Has plaintiff been substantially prejudiced and injured by Kaiser defendants’ conduct?
STATEMENT OF FACTS
The case management conference occurred in this action on September 23, 2003. Using the
date of the conference as the start of the time period, Kaiser defendants initial disclosures were due to
be served to plaintiff on October 6”.
On October 2, 2003 this court issued its case management order. The order stated the
following on page 1:
“No generalized claims of privilege or work product protection shall be permitted. With
respect to each communication for which a claim of privilege or work product is made, the asserting
party must at the time of its assertion identify: (a) persons making and tn So privileged or
protected communication, including affirmation that no unauthorized persons have received the
communication, (c) date of the communication and (d) subject matter of the communication. Failure
to furnish this information at the time of the assertion will be deemed a waiver of the privilege or
protection.”
C-00-3261-VRW MOTION FOR SANCTIONS
APP: ID
|
|
—
Plaintiff served his request for documents to Kaiser defendants on August 29, 2003 (copy of
proof of service attached herein as Exhibit A) After the case management conference on September
23, 2003, Kaiser counsel Steve Chu asked for three extensions of time for their production of
documents. In his discussions with Mr. Chu in regard to these extensions of time, plaintiff inquired
about the extent of his document production. Mr. Chu indicated to plaintiff that Kaiser defendants
would not claim privileges for his mother’s and father’s medical records and for documents he had
requested from the personnel records of Minerva Mostrales. Plaintiff relied on Mr. Chu’s
representations in granting the extensions of time he requested and in the decisions plaintiff made
related to his motion to compel which he filed on November 3, 2003. On Nov. 6, 2003, Kaiser
defendants’ served plaintiff their response to plaintiff's document requests (copy of Kaiser response
attached herein as Exhibit B). In their response, Kaiser defendants claimed generalized privileges
without a privilege log and produced documents that appeared to be solely documents contained in
plaintiff's mother’s medical records for the years 1998-2000.
On January 5, 2004, the court issued its order denying Kaiser defendants’ motion to dismiss.
Kaiser defendants’ answer was due on January 19". On February 4, 2004, plaintiff initiated meet
and confer with Kaiser defendants by telephone and followed-up with a series of 5 letters, the last on
February 20" In these communications, plaintiff raised issues for discussion that included the
inadequacy of the Kaiser defendants responses to plaintiff's document requests, Kaiser defendants’
failure to comply with the case management order by their failure to produce a privilege log with
their response to plaintiff's document requests and their consequent waiver of privileges according to
the terms of the order, Kaiser defendant’s failure to answer the complaint, and Kaiser defendants’
failure to make their initial disclosures. Kaiser defendants made three replies by letter.
On February 18", Kaiser defendants answered the complaint contrary to plaintiff's suggestion
in his meet and confer letters that their answer be delayed until they had done a reasonable inquiry
under the circumstances. On March 15, 2004 Kaiser defendants produced a revised response to
plaintiff's document requests (copy attached herein as Exhibit C) without waiving any privileges and
without producing a privilege log, and produced only one additional document. In their response to
C-00-3261-VRW MOTION FOR SANCTIONS
APP. I)
62 2 ~— A va 2 » b=
ypnwvwrnevenNHReMPekReese st & S&S SS oS eS oS
» Nee PS BD SB Sf & 6 we 2 Oe YS eee
revised Request No.’s I, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, Kaiser defendants inconsistently
claimed alleged “diligent search” without locating any allegedly privileged responsive documents,
for some requests, but not for others, and promised a privilege log if any were later found. In their
responses to Request No.’s 13, 15, 17, 18, 20, 21, 23, and 24 Kaiser defendants again claimed
generalized privileges without a privilege log and without explaining lack of production.
Kaiser defendants’ first responses to plaintiff's document requests appear to have included
only plaintiff's mother’s medical records and no documents from any other source. The medical
records are responsive to some of plaintiff's document requests other than for the medical records
themselves, but do not appear to contain any documents related to any allegations Minerva
Mostrales’ or any other person made against plaintiff.
Kaiser defendants second responses to plaintiff's document requests after meet and confer
contained only the following document which is included as the last’ Meo pages of Exhibit C attached
herein: Defendant Bill Jue M.D.’s “Unusual Occurrence Report” dated 9/7/99.
Kaiser defendants have not disclosed the identity of persons likely to have discoverable
information relevant to their defenses and the identity of the subjects of the information, nor have
they produced a copy or description by category of documents and things in their custody and control
that are relevant to their defenses.
ARGUMENT
KAISER DEFENDANTS HAVE NOT MADE THEIR INITIAL DISCLOSURES
Kaiser defendants have not disclosed the identity of persons likely to have discoverable
information and the subjects of their information Kaiser defendants may use to support their defense
as required by Rule 26(a)(1)(A).
Only one of Kaiser defendants’ documents produced in response to plaintiff's document
requests appears relevant to their defenses, but only if construed in their favor. See last two pages of
C-00-3261-VRW MOTION FOR SANCTIONS
APR I?
4 Marion’s Inn
A Law Partnership
Kennedy P. Richardson Latham Square Telephone
Mark Palley 1611 Telegraph Ave., Suite 707 (510) 451-6770
Yvonne M. Pierrou Oakland, California 94612-2145
Cindy S. Yau Facsimile
Eugene Chang (510) 451-1711
April 12, 2004
Hon. Vaughn R. Walker VIA FEDERAL EXPRESS
U.S. District Court
Northern District of California
450 Golden Gate Avenue
San Francisco, CA 94102
Re: Tom Jensen v. Sweet Home Care
U.S.D.C. No. C 00-0326]
Hon. Judge Walker:
On March 26, 2004, plaintiff filed a motion against Kaiser Foundation Health Plan, Inc.,
Kaiser Foundation Hospitals, The Permanente Medical Group, Inc., and Bill Jue, M.D. (“Kaiser
defendants”) concerning their Rule 26(A) disclosures. The motion is set for hearing on June 3,
2004.
This motion is in essence a discovery motion. The October 2 CMC order specifically
provides that “The court will not entertain formal motions to compel discovery without prior
leave of court. Discovery disputes should be brought to the court’s attention by: (1) telephone
conference with the court and all parties scheduled by the court, or (2) letter not exceeding two
pages, with copies served on all parties, and advising the court that a dispute exists and its
nature.”
The Court therefore should not entertain Mr. Jensen’s motion because he has not obtained
the Court’s permission before filing this motion. The Kaiser defendants are ready to oppose the
motion on its merit, unless otherwise directed by the Court. Please direct your staff to advise me
APP. &
( Hon. Vaughn R. Walker
April 12, 2004
Page 2
before May 3, 2004, ten days before the due date for Kaiser’s opposition on May 13, if an
opposition is required. Thank you very much.
Very truly yours,
ON
Cindy 5. Yau
CSY:mb /
Cc. Tom Jensen
Sonia Martin
Susan King
United Stat~ istrict Court
For the Northen: wistrict of Califomia
ee
Oo on aA vA > WY WN
Bw YH NH WY NW WY YW NV NO F&F | §F|- FSF YF Se OSES Se lUlU lShlUE
co oN AO UA fk Ww Nels lC OWClC COUlClCmwrOWrmlUCNCONMUCUONlUWeelmlUCUMkUCUNCULDKCUD
FILED
APR 2 7 2004
RICHARD W.
WIEK
NOR THEY U8 U.S. DISTRICT coun
N DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DiSTRICT OF CALIFORNIA
TOM JENSEN, No C-00-3261-VRW
ORDER
Plaintiff,
Vv
SWEET HOME ONE CARE FACILITY,
et al,
Defendants.
Plaintiff recently filed two motions. Plaintiff first
moves the court to strike the Kaiser defendants' answer to
plaintiff's second amended complaint. Pl Mot (Doc # 296).
Plaintiff also moves the court for various discovery-related
relief, including sanctions. Pl Mot (Doc # 302).
The parties are scheduled for a dispositive motions
hearing date of October 28, 2004. The fact discovery deadline in
this case is September 30, 2004.
The court's standing orders require a party to obtain
leave of court before filing a motion to compel discovery
responses. See Standing Orders at { 2. To streamline this
APP. [5
ALATA
istrict Court
—_—_
United State
For the Northern District of Caiiformia
Cc onaun rt Y» SN =
.o pte nh ent newektenseeernterkeae «
»nRePePeREEBE SEB eu G6 HM SS YY HY = *
litigation, the court deems it appropriate to extend this
requirement to all motions. Accordingly, unless the parties are
granted leave by the court for good cause shown, no motions will be
heard prior to the October 28, 2004, dispositive motions hearing
date. Leave may be requested by:
, 2 Requesting a telephone conference with all parties or
Y Sending a letter to the court, not exceeding two pages, with
copies served on all parties.
As noted above, plaintiff has two pending motions. The
court TERMINATES plaintiff's motions to strike and for various
discovery-related relief and VACATES their respective hearing
dates. If plaintiff seeks to strike the Kaiser defendants' answer,
he may include such an argument in any dispositive motion to be
heard on October 28, 2004. If plaintiff seeks to bring a
discovery-related issue to the court's attention, he may file a
letter, not exceeding two pages, alerting the court to ‘the nature
of the dispute.
IT IS SO ORDERED.
e A SRP
VAUGHN R WALKER
United States District Judge
: APR (6
<8 7° Tom Jensen
PO Box 614
_. 41 Oakland, CA 64604
ott: [yi @gr0) 918-6667
Re: Jensen v. Sweet Home, C-00-3261 VRW ey Guat
Judge Vaughn R. Walker UR Midi i hel pu cane
US District Court, Northern District of California
450 Golden Gate Ave.
San Francisco, CA
Dear Judge Walker, > opt Aq f 20H
Pursuant to the court’s April 27 Order, plaintiff requests leave by this letter to file a motion
to stay.
In its 1/4/04 Order, pgs. 11-12, the court stated that “Tt may be that plaintiff will be unable to
unearth any evidence of agreements between Sweet Home One and Kaiser to deny plaintiff his
rights” (emphasis added), which can be addressed in a motion for summary judgment.
In spite of plaintiff's comprehensive and successive document requests trying to elicit
information, besides plaintiff's mother’s medical records, Kaiser defendants have produced only
their initial disclosures of 3 documents, two of w’.ich were plaintiff's letters. While admitting they
have files of relevant documents, Kaiser defendants have claimed blanket privileges and objections
to plaintiff's document requests without producing any documents beyond their initial disclosures,
and without producing any privilege log despite the court’s order requiring one. Kaiser defendants
have also provided virtually no answers to plaintiffs interrogatories. What information they have
provided has been in belated and untimely updates, giving clear evidence that Kaiser failed to do a
reasonable inquiry before responding in the first instance, and that their objections were frivolous
and made for the purpose of delay. Like State and Sweet Home defendants, Kaiser defendants have
refused to agree to stipulate to low-cost depositions. Given Kaiser’s discovery conduct, however,
depositions would be expected to be unproductive and wasteful of plaintiff's time and resources.
Kaiser defendants have closed off all avenues for discovery of information to plaintiff.
Plaintiff filed two motions asking for sanctions against Kaiser defendants for violation of the
case management order, for persistent violation of the federal rules, and for failing to do reasonable
inquiries before filing their answer and serving their responses to plaintiff's discovery requests. In
response to Kaiser defendants’ 4/12/04 letter addressed directly the court and which was not served,
the court “terminated” plaintiff's motions, and ordered plaintiff not to file any motions without
leave of the court and to ask the court for discovery relief by two page letter pursuant to the court’s
standing orders. Plaintiff has asked for such relief, but the court has failed to respond in spite of the
court’s standing orders that states that “the court will contact the parties to resolve the dispute”
(emphasis added). The court has effectively closed off all avenues for discovery relief to plaintiff.
A civil trial is a quest for truth. Instead of seeking the truth, Kaiser defendants and the court
have closed off all avenues for discovery of information to plaintiff. “Mutual knowledge of all the
relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329
U.S. 495, 507 (1947). “{T]he spirit of the rules is violated when advocates attempt to use discovery
tools as tactical weapons rather than to expose the facts by ... unnecessary use of tactical weapons
or evasive responses.” Advisory Committee Notes, 1983 Amendment.
The court has given ample evidence of a predisposition favoring opposing parties. Besides
failing to grant plaintiff discovery relief, the court has, like the previous court before appeal, failed
to treat the factual allegations of the complaint as true and draw all reasonable inferences in
plaintiff's favor. Plaintiff had alleged that Peter Jensen and Beth Wells had acted with improper
motives in advocating for the visitation restrictions. Instead of treating these allegations as true, this
court adopted the opposing parties factual contention advanced in their motion to dismiss that Peter
APP. 17
Jensen and Beth Wells had instead acted in good faith in reaching its decision on plaintiffs motion
to amend. Additionally, the court clearly failed to treat plaintiff's factual allegations of neglect of
his mother’s personal and health care as true. Peter Jensen and Beth Wells by clear inference from
these facts would be presumed to have acted in bad faith if plaintiff's allegations of the neglect of
his mother’s personal and health care were treated as true.
The court in failing to treat the factual allegations of the complaint as true and drawing all
reasonable inferences in plaintiff's favor, refusing to even consider any of plaintiff's requests for
discovery relief, and other such incidents beyond the space and scope of this letter motion, raises
the issue of the threat that a wrongful decision will be made based on bias and prejudice and
manipulation of the facts and procedural rules to conform the evidence and the court’s ultimate
decision to a predetermined outcome.
As a result of Kaiser defendants’ discovery conduct and the court’s refusal to provide
plaintiff relief, plaintiff has been deprived of access to documentary evidence and evidence through
interrogatory responses relevant to proof of his claims. Given the foregoing evidence of the court’s
bias and prejudice, the appearance is that the court effectively and sympathetically alerted Kaiser
defendants to withhold material evidence of discrimination in its 1/4/04 Order, and that the court is
cooperating with Kaiser defendants to this end by terminating plaintiff's motions seeking sanctions
and related relief, by failing to enforce its case management order requiring a privilege log, and by
failing to respond to plaintiff's requests for discos ery relief and for leave to file motions to compel.
measures plaintiff must make to protect his procedural rights and preserve the issues of the
unfairness of the proceedings for a second appeal instead using his time for preparation for trial.
Plaintiff is therefore doubly prejudiced by this conduct. The circumstances are especially bad
because the depletion of plaintiff's financial resources, and his chronic health problems that
significantly multiply the time necessary for him to carry out his obligations in this litigation, make
him especially vulnerable to becoming a victim of oppression, and make the oppressive conduct of
the opposing parties and the court particularly odious.
Because of the lack of Kaiser defendants’ production of documents, and the court’s refusal
to provide discovery relief, plaintiff is not now fairly prepared to bring a dispositive motion against
Kaiser defendants or to respond to a dispositve motion from Kaiser or to go to trial. While plaintiff
has substantial circumstantial evidence of Kaiser defendants’ discrimination and conspiracy to
discriminate from other sources, plaintiff lacks documentary evidence Kaiser defendants have
withheld that, based on the circumstantial evidence of discrimination, is reasonably likely to be
expected to dispositively support plaintiff's claims.
Plaintiff is also not fairly prepared to bring or respond to any dispositive motions involving
the State and Sweet Home defendants or to go to trial because he lacks the Ombudsman’s
documents he subpoenaed, and the Janet McKenzie documents he requested from State defendants
and the Beth Wells’ conservatorship and other documents he subpoenaed for which work-product
and attorney-client privileges and protections have been waived because both parties failed to
produce a privilege log required by the court’s case management order. The court has not responded
to plaintiff's requests that the court order all of this information produced. Plaintiff must be given
access to the evidence he requested to overcome the appearance of unfairness in this action.
Plaintiff requests that the court stay the proceedings until the discovery disputes have been
fairly considered and settled in a manner consistent with the federal rules and basic due process
principles, and plaintiff has received all the documents and other information he is entitled to.
Sincerely,
APP. 18
isatat Ou: t
For the Northern District of California
vuiteu orate
wo ona un +} WY NR ~
nN nN ho N N N N N nN — — —_— — -— _ — — — —
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dispute of material fact whether the decision to order, and
approval of, the visitation restrictions were based, partly (if not
completely) on Jensen’s strange and dangerous conduct, ae well as
his siblings’ genuine concern for their mother’s well-being. Doc
#332 at 17 (“[Plaintiff] had his visits restricted because of his
own bizarre and disturbing behavior.”).
Accordingly, for Jensen to survive summary judgment on
these claims he was required to come forward with admissible
evidence establishing an issue of fact whether misperceptions
regarding his mental health were the sole basis for imposing the
visitation restrictions. Jensen’s proffered “evidence”
establishing that his misperceived mental disability was the sole
sonsen for his exclusion, however, falls far short of meeting this
requirement.
Jensen relies upon statements made by his siblings to
various state and Sweet Home defendants. Doc #344 at 25-26. For
example, Peter Jensen wrote to DSS that he thought Jensen was
“mentally unbalanced.” Doc #311, Ex C at 1. Also, Beth Wells told
Goupal that “Tom is disruptive and unbalanced.” Doc #345, Ex A at
5. These are simply two representative examples of several
statements, all to the same effect, made by Jensen’s siblings to
various defendants. Moreover, Jensen offers a letter from
Monstrales to state defendants stating that “it is Tom’s mental and
behavioural [sic] problems that prompted him to bring [his mother]
to [Kaiser’s] office.” Doc #311, Ex C at 3 (emphasis added). The
foregoing “evidence,” according to Jensen, “support[s] the strong |
inference that discrimination on the basis of disability was
determinative of the acts and decisions of [s]tate defendants.”
es APP. [4
ustrice COUae
uniteu srate
feo
For the Northern District of California
Doc #344 at 25.
First, all of these statements are hearsay within the
meaning of FRE 802 and Jensen has made no argument that these
statements are admissible under an exception to the hearsay rule.
But more importantly, this evidence actually belies Jensen’ s
assertion, as Monstrales’ letter to state defendants explicitly
references Jensen’s “behavioral problems” (i e, his conduct), thus
negating the assertion that only Jensen’s perceived mental illness
was at issue in imposing the visitation restrictions.
Upon viewing all of the evidence, it is beyond dispute
that state defendants’ actions were based in large part (if not
entirely) on Jensen’s bizarre conduct towards his mother and the
anxious reactions this behavior elicited from his siblings. No
reasonable jury could find otherwise. Accordingly, 48 Jensen’s
perceived mental disability was not the sole basis for imposing the
visitation restrictions, state defendants’ motion for summary
judgment on Jensen’s ADA and RA claims is GRANTED.
VIIL
In sum, the court DENIES Jensen's motions for
reconsideration (Docs #336, 338), DENIES Jensen’s Rule 56(f)
application (Doc #358) and GRANTS all defendants’ motions for
summary judgment (Docs ##322, 329, 332).
On a side note, after fours years of litigation, massive
amounts of paper and numerous hours expended by all involved, the
court is of the opinion that at the heart of this complicated
lawsuit is a man despondent over the state of his relationship with
his immediate family. It is the court’s sincere hope that these
34 APD. 26
[ ae Pale
/ =
[ Subject: Brother Tom
i” From: pljense@ibm.net
To: Hopalong@tweney .com
Date: 06-07-99, 06:28:35 PM
cas Dear David,
I think that the only way to drop out and go sailing is to throw your
computer over the side and stay out of the country.
Well, Tom is still in Fremont. He called Beth this evening and wants
her
and Mama to gO to counseling with him regarding Mama’s care (or lack
of).
Needless to say this freaked Beth out. So she was thinking the 3 of us
\ could meet with Tom/counselor.
I told her no way that I would meet with Tom with a counselor. I
' suggested
that you and I might meet with Tom alone. We need to keep Beth out of
: it
as much aS poSSible. So we are back to the same situation of the note
that
you sent me on 04/09.
I object to the concept that Tom can come into town, make accusations
and
judgements, and expect us to hop to and respond. (Too long a story to
describe here.) My take is to just stonewall him but Don reasons that
it
is too easy for him to go to Social Services and file a complaint of
! "elder abuse” - and I have to agree with him on that. I have a call in
to
Ms Jones, the next door neighbor and family law specialist, on how to
handle
| this. I am thinking of a restraining order on Tom. He has been
independ-
ently bringing her to Kaiser for medical treatment of "problems" which
he has dignosed, much to the distress of the Kaiser doctor. Plus, he
has
been causing the problems with Mama as documented in the letter from
Sweet
|
Home. Hope tO hear from Ms. Jones before I close this off.
(- I understand you will be arriving on Friday. We can talk on Saturday
and
perhaps meet Tom on Sunday. I am no longer concerned about Tom’s
feelings
on this subject. All of the rest of the siblings, plus in-laws, are in
agreement with how Mama’s care is being handled. Beth and I go into
high
blood pressure alert every time we hear from Tom. I have had it with
/ ae }
: 73 peek
8
Subject: Brother Tom
. _ him
5 jerking me (us) around.
. Well it is after 8 and Ms. Jones has not called back yet aolI will
close
P this off and update you later.
| ‘Peter
: 234 ER?!
_
ott
*
don't care & not concer of their mother. Tom has been Mr.Gerald and Marguerite Jensen's
problem son, heart breaking to them ever since. Tom is the "family problenvtrouble
maker". The black sheep of the family. Its embarassing to the family since all of them are
well educated and professional. Paty os fw
4. Upon Marguerite Jensen admission to Sweet Home; Phyllis Beth Wells made the
arrangement and signed the Facility Admission agreement on behalf of all other family
members, Peter Jensen, David Jensen & Allan Jensen. We never knew nor dealt with Tom
Jensen for several months, probably more than a year. He was never part of the family
decisions. With this fact, we always abide with Phyllis Beth Wells and Peter Jensens'
decisions for the best welfare of their mother.
_ 5. Dr Bill Jue of Kaiser Permanente and Dr. D. Jue of Fremont, Ca, strongly
believed and knew that Marguerite Jensen is being cared properly, They both knew and
confirmed that it is Tom's mental and personal behavioural problems that prompted him to
bring Marguerite to their offices for any for inappropriate complaints and uneventful
medical visits. For which he got upset with the doctors for not confirming his own made-
up diagnosis. He has bothered, demanded and threatened Dr. Bill Jue. For this, Tom has
been denied access to Kaiser premises, not allowed to bring Marguerite for any medical
consultations. Securities are alerted on his presence to deal with him.
Enclosed a copy of Don Wells’ letter regarding his conversation with Dr Jue.
The Ombudsman also came and investigated Sweet Home due to Tom's
Complaints. The Family were contacted too, and conclusion of allegations was without
merit. Enclosed two (2) letters from Don Wells regarding their conversations with the
Ombudsman.
All the agencies involved, the family members, the medical doctors and the
Ombudsman were all together against Tom's unacceptable, inappropriate behavior. We all
have the duty and responsibility to protect Marguerite Jensen. So we all were working
together and doing our best to protect Marguerite from detrimental effects on her mental,
~ emotional, and physical aspect of life and give her dignity and peaceful, non-stressful life.
With all these reasons and facts mentioned with proper documentations. We
strongly felt that giving us a citation was unfair, unjust, discrimanatory and wrongly
accused us for not allowing our residents to have visitors.
So, we appeal that you reconsider all these reasonable facts and evidences,
regarding Anita Gopaul, LPA citation of Personal Rights.
May the Lord bless you and help you make the best and right decision, to give
justice and merit for people who are sincere of serving, helping and caring for people.
Sing rely yours, ‘
bettas ™ uly petals
Oostrales
Licensee/Administrator Licensee/Administrator
SH0016
1\| Cal. Code Regs., § 87572(11)). The plaintiff reported this action to Beth Wells, but she took no
| 2\| action and made no comment in regard to that order.
13. The plaintiff observed that his mother appeared to have no significant signs or symptoms
of asthma during his frequent visits with her at defendant SWEET HOME during 1998.
Plaintiff's Observations of Neglect of his Mother
observed the following circumstances of neglect of her personal and health care at defendant SWEET
3
4
5
6 14. During frequent visits with Mrs. Jensen beginning in April of 1999, the plaintiff
7
g|| HOME:
9 15. Mrs. Jensen suffered a prolonged and untreated episode of illness characterized by
10]| episodes of severe breathing distress, chronic cough, facial features darkened by a reddish flush, a
11|| haggard and distressed appearance, weakness and fatigue, dizziness and vertigo, and confusion with
' 12\| light physical activity. The course of her illness spanned over three months, and during its course Mrs.
13]| Jensen coughed up a large Y-shaped mucous plug then large quantities of clear then purulent mucous.
. 14|| In the aftermath of her illness, Mrs. Jensen exhibited continuing signs and symptoms of breathing and
15|| other distress that she had not suffered previously.
| 16 16. The plaintiff observed negligent and improper use of and oversight of use of Mrs. Jensen's
17|| metered-dose-inhalant asthma medication by a resident caregiver of defendant SWEET HOME. The
\ 18|| plaintiff observed a persistent white coating on his mother’s tongue that was apparent for a prolonged
19|| period that the plaintiff is informed and believes was thrush, and Mrs. Jensen complained to him that
20|| she was denied her asthma medication when she felt she needed it.
21 _ 17. The plaintiff observed that his mother was reacting to asthma triggers in the defendant
22|| SWEET HOME facility, and that her signs of breathing distress would improve while she was
23|| outdoors and deteriorate when she returned to said facility. Mrs. Jensen herself commented frequently
24\| on this difference in air quality and on her favorable response to the outdoor air. The plaintiff
25|| observed that his mother’s room was dusty and that the dust was not cleaned week to week. The
26|| plaintiff found an accumulation of dust and debris around the wall edge of Mrs. Jensen’s bed. The
27|| HEPA air filter in her room had a coating of white dust on the pre-filter.
—
“4
28
ie a
SECOND AMFNDED COMP! AINT
APP. 25
C-00-3261-VRW
l]|
- ae
2|| did not observe regular visits to the toilet sponsored for her by resident caregivers of defendant
3| SWEET HOME. The plaintiff, by attending to his mother’s toileting needs himself while visiting,
|
‘
18. The plaintiff found his mother routinely in wet diapers when he arrived for visits, and he
found that his mother was not incontinent, but could reliably hold her urine for two hours, and would
tell him when she needed to go to the bathroom. The plaintiff observed that his mother did not know
how to ask for assistance from resident caregivers of defendant SWEET HOME when she needed to
go to the toilet. When plaintiff inquired of his mother what she did when she needed to go to the toilet
when he was not present, she replied, “I forget about it.”
19. The plaintiff observed the multiple reuse of previously used disposable gloves by a resident
caregiver for cleaning Mrs. Jensen after her toilet activities. He observed a resident caregiver, using
said previously used gloves, clean his mother after her toilet activities by dipping her gloved fingers
into a jar of water and swapping Mrs. Jensen’s anal area. Said caregiver, using the same gloved
hand and jar of water, then swabbed her genital area in the same manner. Another similar unsanitary
practice by the same caregiver was observed by the plaintiff at another time. Said caregiver has been
the regular and principal caregiver for Mrs. Jensen at defendant SWEET HOME.
20. The plaintiff observed that his mother’s personal hygiene was, for a prolonged period,
neglected. She had body odor, greasy hair, and smelly feet. The‘ plaintiff twice during this period
found her feet covered by layers of scaled skin. Her breath was extremely fetid and her teeth and
dentures were unclean. Mrs. Jensen complained to the plaintiff of a bad taste in her mouth, which
caused her to spit out her food after she chewed it. She complained to the plaintiff about her dirty
hair, and told him that she was afraid to express her needs in regard to her personal hygiene for fear of
causing offense and suffering reprisal.
21. Mrs. Jensen complained repeatedly to the plaintiff that she had no activities or exercise,
which lack concerned and distressed her. The plaintiff observed that this was a valid complaint, and
that she spent virtually her entire day in idleness, and that her frailty constrained her own exercise of
her interests in activity, and that assistance in that regard was necessary and not provided for.
22. In the midst of these observations by the plaintiff, and before he became aware of the total
C-00-3261-VRW SECOND AMENDED COMPLAINT
APP. 25
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scope of the neglect of his mother as related herein, Mrs. Jensen confided to him that “they do things I
know aren’t good for me,” adding that she didn’t know whether to object or to go along to avoid
causing offense.
23. The plaintiff informed his mother’s doctor defendant BILL JUE MD, Peter Jensen and
Beth Wells, and the “Patient Representative” of defendant KAISER PERMANENTE
MEDICAL OFFICES - MILPITAS of his mother’s health care needs, of the neglect of her care he had
observed, and of Mrs. Jensen’s expressions of dissatisfaction with the circumstances of her care. The
plaintiff's activities in that regard, and said defendants’ responses to the plaintiff's information are
more fully described below.
Plaintiff's Attempts to Obtain Medical Treatment for his Mother
24. The plaintiff made two visits with his mother to her doctor defendant BILL JUE MD
at defendant KAISER PERMANENTE MEDICAL OFFICES - MILPITAS, the first soon after he
arrived in April of 1999 after an approximate three months absence from Mrs. Jensen’s presence, and
after he first observed the signs and symptoms of her illness as described in paragraph 15 above. At
neither visit did defendant BILL JUE MD offer any medical opinion or diagnosis to the plaintiff, or any
treatment for his patient Mrs. Jensen.
25. At one of these office visits, the plaintiff informed defendant BILL JUE MD of his concern
that Mrs. Jensen was reacting to asthma triggers in the defendant SWEET HOME facility, specifically
mentioning that he had found an accumulation of dust and debris around the edge and under her bed.
Defendant BILL JUE MD replied that he had allergies too, and that his under-bed was probably dirty
as well. The plaintiff also informed said defendant that he suspected the heating system air ducts to be
a source of asthma triggers for Mrs. Jensen. Said defendant replied that he didn’t believe that air ducts
were cleaned, and that all that needed cleaning were air filters.
26. After the second visit to said defendant, which was after Mrs. Jensen had dislodged the
mucous plug from her lungs, the clear then purulent mucous that was observed by the plaintiff was
expelled by her coughing.
27. Subsequent to this sign, on July 7, and about three months after he had first observed Mrs.
C-00-3261-VRW SECOND AMENDED COMPLAINT
APP. 26
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TOM JENSEN 04 0 ae a
P.O. Box 614 CT ~7
Oakland, CA. 94604 atte, ‘tee
(510) 918-6667 AER AARO wy 78
Non AST p ACK iy
Plaintiff in propria persona ; 7 wes, coup ,
Oh Mai
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
TOM JENSEN, No. C-00-3261-VRW
Plaintiff
DECLARATION
IN SUPPORT OF PLAINTIFF’S
OPPOSITION TO DEFENDANTS’
vs. SUMMARY JUDGMENT MOTIONS
SWEET HOME ONE CARE FACILITY, et al., Date: October 28, 2004
Time: 2:00 p.m.
Defendants Place: Courtroom 5, 17” floor
Before: Honorable Vaughn R. Walker
I, Tom Jensen, declare:
1.
2.
I am the plaintiff in this action.
The Exhibits A and B to plaintiffs motions for summary judgment are true and correct
copies of the originals.
All of the documents written by my hand are true and correct as to the facts and
circumstances they state.
All the audio tape transcripts I have made of my mother’s words are true and correct as to
what she said.
I never arrived at Sweet Home before 8:00 a.m. I believed that the visiting hours were
8:00 am. to 5 p.m. No one ever told me otherwise and no one ever objected in my
| C-00-3261 VRW PLAINTIFF'S OPPOSITION TO DEFENDANT S*’ MOTIONS FOR SUMMARY JUDGMENT
Enis APP 27
: ) 1 presence to my arriving at that hour. There was never any activity at Sweet Home when I
| 2 arrived at 8:00 a.m.
3 6. The Dec2, 1999 fax sent to me by Anita Gopaul is not a true and correct copy of the
4 document I actually received.
5 7. I never engaged in any improper activity with my mother at Sweet Home or arywhere
6\| else.
7 8 The facts as I have stated them in {J 11-74 of the Second Amended Complaint are true and
{
. 8 correct.
| 9 I declare under penalty of perjury that the foregoing is true and correct
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C-00-3261 VRW PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
fF: erieh _ AFP. 2
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For the Northem vistrict of California
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FILED
JAN 31 2005
RICHARD W. WIEKING
neRTHE: as Dre CT OF CELIPCANIA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
TOM JENSEN, No C 00-3261 VRW
Plaintiff, ORDER
Vv
SWEET HOME ONE CARE FACILITY, et
al,
Defendants.
After four years of contentious litigation, an
intermediate appeal to the Ninth Circuit and a literal mountain of
filed documents (occupying eleven large file folders), this case
has finally reached its final summary judgment phase. As the
litigation currently stands, plaintiff Tom Jensen (Jensen) alleges
several federal and state law causes of action against an
inordinate number of defendants. Doc #311. Currently before the
court are all defendants’ separate motions for summary judgment.
Docs ##322, 329, 332. Also before the court are Jensen’s two
motions for reconsideration of the court’s orders denying his
AFP. 29
Tom Jensen appeals pro se from the district court judgment dismissing his
civil rights action. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal for failure to state a claim. Epstein v. Wash. Energy Co., 83 F.3d
1136, 1139 (9th Cir. 1996). We affirm in part and reverse and remand in part.
Jensen contends that the district court erred by dismissing his claim that his
rights were violated by the restrictions placed on his visitations to his mother, a
resident at Sweet Home One Care Facility. We agree.
Although the district court properly concluded that J ensen’s pleadings were
sufficient to allege the defendants acted under color of state law when they
imposed restrictions on his visits, the district court failed to treat Jensen’s
allegations as true and draw all reasonable inferences in his favor when ruling on
the motion to dismiss. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th
Cir. 1987). Because Jensen had sufficiently alleged that the private defendants
were state actors, they could not unreasonably restrict his First and Fourteenth
Amendment rights. In addition, Jensen alleged that his brother had falsely
accused him of being disruptive. The district court improperly relied on this
accusation to conclude that Jensen had failed to raise cognizable claims pursuant
to the First and Fourteenth Amendments. Accordingly, the dismissal of Jensen’s
: | ee, —het 30
vy Ou &- WwW N
SECOND REPLY TO MOTIONS TO DISMISS
Some of the matters of the motions and replies of the Defendants
are inappropriate as matters relevant to motions to dismiss. It is
the legal issues of “subject matter jurisdiction," "claims upon which
relief may be granted,” and immunity that are properly considered.
Not counterclaims that are not verified or supported by facts or
affidavit or amenable to reply.
For purposes of the Motions to Dismiss, the facts of the Amended
Complaint should be considered as true and viewed in the light most
favorable to the Plaintiff (National Abortions Federation v. Operation
Rescue 8 F 3d 680, 681 (9th Cir 1993). Matters outside the pleadings
of the complaint should be disregarded (FRCP 12(b)). It should be
assumed that there is evidence to support the facts and the claims.
The Facts of the Amended Complaint are verified. fhe Plaintiff
has sworn under penalty of perjury that they are true. The Facts
clearly state serious neglect of the care of Mrs. Jensen and serious
deterioration in her health that was not medically treated.
The Plaintiff, under these circumstances, was clearly obligated
to attempt to remedy such neglect. The facts of the complaint des-
cribe those attempts and the acts of the defendants in response to his
complaints of neglect of his mother.
A claim for elder ebuse has not been made in this action, but
elder abuse and the consequences of the Plaintiff's complaint of
neglect of his mother is the context of the constitutional claims.
The family context of this action is irrelevant to consideration
of the Motions to Dismiss except for the fact that it is the context
APP. 3)
1
SECOND REPLY TO MOTIONS TO DISMISS
10
VISITATION RESTRICTIONS.
WHAT WE HAVE IS A HUNDRED ALLEGATION COMPLAINT THAT
HAS A LOT OF STUFF IN THERE ABOUT DETAILS REGARDING HIS
MOTHER'S CONDITION AS HE SAW IT, OR AS HE ALLEGES, DETAILS
REGARDING THE ELDERLY, GENERALLY AS A CLASS.
THOSE ARE NOT RELEVANT TO THE VISITATION
RESTRICTIONS, AT LEAST AS FAR AS STATING A CLAIM IN HIS
COMPLAINT.
WHAT I AM CONCERNED ABOUT IS THAT THE COMPLAINT NOT
ONLY IS GOING TO REQUIRE A LINE-BY-LINE ANSWER, WHICH ALBEIT
REQUIRE A LOT OF DENIALS, BUT I AM CONCERNED ABOUT THE EXTENT
TO WHICH THE PLEADING DOES OPERATE IN THIS CASE IS GOING TO
FRAME THE ISSUES FOR DISCOVERY PURPOSES AND HOW THAT'S GOING TO
PLAY OUT LATER ON IN THE CASE.
SO THAT'S WHY WE PROPOSE, WE THOUGHT IT WOULD BE THE
EASIEST ON THE COURT, THAT WOULD BE THE CLEAREST, NOT REQUIRE A
LOT OF BRIEFING, SO ON AND SO FORTH, TO HAVE THE PARTIES SUBMIT
REDACTED COMPLAINT FOR THE COURT TO REVIEW INDEPENDENTLY AND WE
JUST THOUGHT THAT WOULD BE THE MOST EXPEDITIOUS AND EASIEST WAY
TO PROCEED.
THE COURT: YOU AGREE WITH THAT?
MS. FLAHERTY: YES, I DO, YOUR HONOR.
THE COURT: LET'S DO THIS.
AS MR. JENSEN POINTS OUT, WE CAN’T REALLY DO
ANYTHING TODAY UNTIL WE GET THE MANDATE BACK.
ARP. 32
DIANE E. SKILLMAN, OFFICIAL COURT REPORT: eau ‘4
ad
uniteu s.ate
. ustrice Cours
For the Northern District of California
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Doc #344 at 25.
First, all of these statements are hearsay within the
meaning of FRE 802 and Jensen has made no argument that these
statements are admissible under an a om to the hearsay rule.
But more importantly, this evidence actually belies Jensen’s
assertion, as Monstrales’ letter to state defendants explicitly
references Jensen’s “behavioral problems” (i e, his conduct), thus
negating the assertion that only Jensen’s perceived mental iliness
was at issue in imposing the visitation restrictions.
Upon viewing all of the evidence, it is beyond dispute
that state defendants’ actions were based in large part (if not
entirely) on Jensen’s bizarre conduct towards his mother and the
anxious reactions this behavior elicited from his siblings. No
reasonable jury could find otherwise. Accordingly, as Jensen’s
perceived mental disability was not the sole basis for imposing the
visitation restrictions, state defendants’ motion for summary
judgment on Jensen’s ADA and RA claims is GRANTED.
VIII
In sum, the court DENIES Jensen’s motions for
reconsideration (Docs #336, 338), DENIES Jensen’s Rule 56(f£)
application (Doc #358) and GRANTS all defendants’ motions £or
summary judgment (Docs ##322, 329, 332).
On a side note, after fours years of litigation, massive
amounts of paper and numerous hours expended by all involved, the
court is of the opinion that at the heart of this complicated
lawsuit is a man despondent over the state of his relationship with
his immediate family. It is the court’s sincere hope that these
APP. 33
34
For the Northern District of Califomia
differences are eventually h
it is not the job of the court to provide vengeance or leverage to
siblings involved in familial disputes. The court believes that
efforts to repair his tattered relationships will yield Jensen more
promising results than litigation.
Accordingly, the clerk is directed to enter JUDGMENT in
favor of all defendants, CLOSE the file and TERMINATE all motions.
IT IS SO ORDERED.
ealed or, at least, ameliorated. But
7 bine ee
VAUGHN R WALKER
United States District Chief Judge
" Abe, 38
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severe and intractable pain and malaise and by the hopelessness of my situation. I spent three
>| months on the mountain and during that period J substantially recuperated. I discovered while I was
there that I had significant sinus inflammation that I was not aware of because it was masked by the
malaise. I subsequently sought treatment for chronic sinus infection which was a significant step
toward management of my malaise and pain symptoms, as is periodic antibiotic treatment.
11. Iam informed and believe that on the basis of my experience and on the basis that my
health problems have a genetic basis that my mother also needed periodic antibiotic treatment to
control her symptoms. I am informed and believe on the foregoing bases that family attention to my
health problems would have helped in understanding my mother’s health problems and the health
problems of other family members.
12. While on the mountain I had time to reflect on my family situation and realized that I had
wasted my time and energy seeking help from my siblings and that to continue to seek help from
them would be fruitless and harmful to me. | realized that 1 was entirely on my own in seeking to
resolve and cope with my health problems. I resolved then out of necessity for my well-being to
break my bonds with my siblings.
13. Because of my lack of a good relationship with my siblings, I did not reestablish personal
contact with my parents until 1 learned the nature of my illness and its cause, and was able to manage
my worst symptoms. I believed it would be dangerous for me to appear when [ was too ill when
there was no acceptance and understanding of my health problems.
14. I would not have become involved in the circumstances of my mother’s care but for her
obvious neglect, her entreaties for my company and protection, and by my sense of duty to her.
Additionally, I was fearful for her because my siblings failure of empathy and understanding of my
health problems and unwillingness or inability to communicate about them indicated that my mother
was similarly at risk. I also became fearful for my mother after I observed that my father was left in
wet diapers, and I unknowingly at the time, observed signs of his urinary tract infection that were
ignored or went unobserved by his caretakers and Beth Wells, well before his infection became acute
and required that my father be hospitalized.
C-00-3261 VRW ; PLAINTIFF'S DECLARATION
ERist 35
care and reporting neglect.
Moving parties have failed to meet their summary judgment burden on both
plaintiff’s claims and moving parties defenses.
Moving parties’ motions were effectively limited to discussing their affirmative defenses,
and ignored plaintiff's dispositive evidence of the neglect of plaintiff's mother’s personal and
health care. Moving parties have not met the burden their threat defense imposes of showing
that plaintiff's mother’s personal and health care were not neglected and that plaintiff's
supposedly threatening activities of investigating, observing and reporting the neglect of his
mothers personal and health care were not warranted.
Plaintiff is entitled to judgment on Claims I and II.
Throughout the proceedings moving parties have prejudiced plaintiff by deliberately and
improperly ignoring the relevance of plaintiff's verified allegations and evidence of the neglect
of plaintiff's mother’s personal and health care in a wrongful effort to influence the court to
ignore them as well. All of the moving parties’ facts bearing on the issues are now before the
court and show that moving parties have a complete absence of proof of the essential elements of
their defense. The essential elements of plaintiff's claims are undisputed The Court of Appeals
has the authority to remand for entry of judgment in favor of plainuff.
VI. ARGUMENT
A. THE CONDUCT OF THE PROCEEDINGS IN THE DISRICT COURT WAS
UNFAIR AND OPPRESSIVE TO PLAINTIFF, AND CAUSED PLAINTIFF TO BE
PREJUDICED AND TANGIBLY INJURED
INTRODUCTION
The VRW court opened its judgment opinion with a comment on the volume of the files,
without offering an explicit opinion as to why they are so voluminous. It appears clear that the
VRW court is improperly suggesting by innuendo that the volume of the files and the iength of
the proceedings are, by themselves, evidence that these things are plaintiff's fault. However,
when the facts of the proceedings are fairly examined without resort to innuendo they show that
Ps _APP. 36
filed. No hearing was had on any motions related to the summary judgment.
Plaintiff filed a motion to file an oversize brief in this court which was granted in part.
However, due to the page limitations plaintiff has been significantly hampered in presenting any
issues beyond the VRW court’s failure to consider plaintiff's evidence. The important issue of
improper conduct throughout the proceedings causing prejudice to plaintiff that impacts the
integrity and efficiency of the courts, and that is dealt with only indirectly in this brief due to the
page limitation, should not be allowed to evade effective review.
IV. STATEMENT OF THE FACTS
1. PLAINTIFF'S MOTHER'S PERSONAL AND HEALTH CARE WERE NEGLECTED
(a) Plaintiff's mother’s bronchitis related illness was neglected
Beginning in the winter of 1999, plaintiff's mother “suffered a prolonged and untreated
episode of illness characterized by episodes of severe breathing distress, chronic cough, facial
features darkened by a reddish flush, a haggard distressed appearance, weakness and fatigue,
dizziness and vertigo, and confusion with light physical activity. The course of her illness
spanned over three months. and during its course [plaintiff's mother] coughed up a large Y-
shaped mucous plug then large quantities of clear then purulent mucous.” SAC verified Facts {i
13-15 (E.R.Ex.A). And see E.R.95-96 (pgs.2-3 of plaintiff's verified 9/03/99 letter to Kaiser
defendant Bill Jue MD). Sweet Home records show that plaintiffs mother had been coughing
and had been given cough syrup and Tylenol for the period of 3/17/99 to 4/8/99. E.R.5-6.
After plaintiff's and his mother’s first clinic visit to Kaiser defendant Jue to report these
symptoms plaintiff's mother coughed up a large y-shaped mucous plug. After a second visit to
Jue with no diagnosis or treatment, plaintiff's mother started to cough up large quantities of clear
then purulent mucous. SAC verified Facts #1 15 and 26. Plaintiff then sought a second opinion
from Dr. Derek Jue of Washington Newark Medical Group who diagnosed plaintiff's mother
with bronchitis and prescribed her antibiotics which were never administered. SAC verified
Facts J 27. E.R.7-8 (record of 7/7/99 clinic visit). Plainuff brought a sample of plainuff's
: APP. 37
27
”
rights to the elderly to oppress and retaliate against complainants, encourages and enables low
standards of investigative inquiry by state agencies of oversight, and discourages and inhibits
complainants from asserting and following through with justifiable claims of abuse, neglect, and denial
of personal rights.
85. Federal law and legislative intent, and numerous federally sponsored reports and
legislative hearings (see California Nursing Home Problems Persist, Sudocs NBR. GA 1.13: HEHS-
98-202 & Betrayal; The Quality of Care in California, Sudocs NBR. Y 4.AG 4: S.Hrg. 105-735), and
similar California law and legislative intent and state sponsored reports and hearings (see the “Little
Hoover Commission” reports: Long Term Care: Compassion Without Confusion & The Snails Pace
of Reforming Residential Care Facilities for the Elderly), and legal journal articles (see Butler, A
Long-Term Health Care Strategy for Legal Services, 14 Clearinghouse Rev. 613 (1980)), indicate| _
that this class is in need of special protection and that the problems of abuse, neglect, and denial of :
rights of this class have been refractory to legislative attempts at remedy. These listed sources have
further stated that the interests of this class are under represented in the courts (see Cal. Welf. & Inst.
Code §§ 15600 (h) & (j), and that supposedly competent institutions designed to protect and
vindicate the rights of this class have consistently failed to do so. Exhibit B is adopted and
incorporated in this paragraph by this reference in support of this allegation.
Vi. CLAIM _I
VIOLATION OF CONSTITUTIONAL RIGHTS, AND CONSPIRACY TO VIOLATE
CONSTITUTIONAL RIGHTS UNDER COLOR OF STATE LAW, CUSTOM, USAGE, AND
POLICY - 42 U.S.C. § 1983
{Defendants California Health and Human Services Agency (formerly known as California Health and
Welfare Agency), California Department of Social Services, Community Care Licensing Division,
Martha Lopez, Elaine Arrington, and Anita Gopaul (“State Defendants”), Sweet Home One Care
Facility, Minerva Mostrales, and Soledad Almocera (“Sweet Home Defendants’).
86. The jurisdictional allegations, paragraphs 1-10, the verified Facts (paragraphs 11-75), the
General Claims (paragraphs 76-85), Claim II, and Exhibits A, B, and C are adopted and incorporated
20
|| €00-3261-VRW SECOND AMENDED COMPLAINT
APP. 38
| AGENCY, as state entities receiving federal funds, are bound
2
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S
5
6
by the requirements of these Acts and by the Federal Regulations
adopted to implement these Acts (42 U.S.C. §§ 12131, 12132, 29
U.S.C. § 794 and 42 U.S.C. § 6102 and 45 C.F.R. §§ 91.31 & 91.32).
IX. CLAIMS FOR RELIEF
Claims for Marguerite Jensen
111. Marguerite Jensen has no plain, speedy, or adequate
remedy at law for neglect of her care and violation of her consti-
tutional rights. The plaintiff, in his capacity as a concerned,
immediate family member who has heard her complaints and observed
and reported neglect of her personal and health care and denial
of her rights, has been denied administrative appeal of the
decisions and acts, as set forth in this complaint, of the agents
of defendant COMMUNITY CARE LICENSING.
112. Wherefore, the plaintiff requests that the followinc
relief be granted to Marguerite Jensen:
(a) That a preliminary injunction be issued voiding the "Vis-
itation Restrictions for Tom Jensen," and prohibiting further neg-
lect of Mrs. Jensen's personal and health care and personal rights
by the defendants, and their agents, employees, we aeuccletes,
(b) That the court declare the "Visitation Restrictions for
Tom Jensen" to be null and void, and a violation of Mrs. Jensen's
federal constitutional rights (First and Fourteenth Amendments),
and the California Code of Regulations title 22 § 87572(11).
(c) That a permanent injunction be issued against the defen-
dants and their agents, employees, or associates, enjoining them
from further violations of state law and regulations, and from
36 APP. 39
COMPLAINT RNS:
CERTIFICATE OF COMPLIANCE
The attached Petition for rehearing of denial of Petitioner’s writ of certiorari presents
substantial grounds not previously presented and is presented in good faith and not for delay.
I declare under penalty of perjury under the laws of the United States thai the foregoing is
true and correct.
Executed on: Fob. 2 L007 , By: Tow —eiiiaitieen
Tom Jensen,
Petitioner in propria persona,
P.O. Box 614
Oakland, CA 94604
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.