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News :: Human Rights
Schlund Vs. Bush Appeal To Ninth Circuit - [Updated 7/10/06] - Part 1 of 2
10 Jul 2006
High-tech TORTURE is being used to silence a whistleblower who is trying to expose *massive* government corruption.
U.S. COURT OF APPEALS 9TH CIRCUIT DOCKET NO. 06-15017


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



CHARLES AUGUST SCHLUND, III,
Plaintiff/Appellant,



vs.



GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES
OF AMERICA, A SOVERIGN NATION; GEORGE W. BUSH,
AN INDIVIDUAL,
Defendant/Appellee.


ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF ARIZONA,

U.S.D.C. NO. CV-03-1590 PHX VAM

HONORABLE VIRGINIA A MATHIS


APPELLANT’S REPLY BRIEF



Charles August Schlund, III
8520 N. 54th Drive
Glendale, Arizona 85302
(602) 670-2017
Plaintiff /Plaintiff




U.S. COURT OF APPEALS 9TH CIRCUIT DOCKET NO. 06-15017

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



CHARLES AUGUST SCHLUND, III,
Plaintiff/Appellant,


vs.



GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES
OF AMERICA, A SOVERIGN NATION; GEORGE W. BUSH,
AN INDIVIDUAL,
Defendant/Appellee.



CERTIFICATE OF INTERESTED PARTIES



Charles A. Schlund, III (“Plaintiff”) certifies that the following have an interest in the outcome of this case: Plaintiff, Charles A. Schlund, III. George W. Bush, an individual, and George W. Bush, in his capacity as President of the United States, are the Defendants in this matter.

There are no known interested parties other than citizens of the United States, who have not been joined as a party to this action but reserve the right to do so, only those parties participating in this case, whose names above or in the original caption in United States District Court, District of Arizona, CV-03-1590 PHX VAM.



By:________________________________________________
Charles A. Schlund, III
Plaintiff/Appellant in Pro Per










TABLE OF CONTENTS Page

TABLE OF AUTHORITIES iii

TABLE OF STATUTES iv

I. STATEMENT OF ISSUES PRESENTED FOR REVIEW 1

II. STATUTES INVOLVED 2

III. COUNTER-STATEMENT OF THE FACTS AND CASE 3

IV. LEGAL DISCUSSION 11

A. DEFENDANT BUSH’S MOTION TO DISMISS HAS 11
CONCEDED AND ADMITTED SUFFICIENT FACTS
TO ESTABLISH HIS ILLEGAL ACTS AND CONDUCT
ARE UNCONSTITUTIONAL, DEPRIVING APPELLANT
OF HIS CIVIL RIGHTS, AS PLED IN HIS VERIFIED
COMPLAINT. THE SUBSTANTIALITY IS SATISFIED.






B. DEFENDANT BUSH’S ADMITTED PROGRAM 28-29
INVOLVES THE USE OF ELECTRONIC WIRELESS TELEMETRY
SURVEILLANCE SYSTEMS TECHNOLOGY AND ELECTRONIC
PRODUCTS FOR PERPETUAL AND WARRANTLESS INVASION OF
PRIVACY, SEARCHES, AND TORTURE OF PLAINTIFF RESULTING
IN DEPRIVATION OF CONSTITUTIONAL RIGHTS.


C. DEFENDANT’S ILLEGAL USE OF WIRELESS 42
ELECTRONIC TELEMETRY AND ASSOCIATED ELECTRONIC
PRODUCTS IN HIS PROGRAM HAS THE ACTUAL RESULT OF
VIOLATING AND DEPRIVING SCHLUND OF HIS FREE SPEECH,
ASSOCIATION WITH OTHERS, RIGHT TO VOTE, RELIGION,
PURSUIT OF HAPPINESS PERSONALLY/PROFESSIONALLY,
WITNESS TAMPERING AND SLEEP DEPRIVATION, HAVING
THE ACTUAL EFFECT OF TORTURE OF PLAINTIFF.


V. CONCLUSION 48






TABLE OF CONTENTS Page


VI. STATEMENT OF RELATED CASES 53


VII. PROOF OF SERVICE 54


CERTIFICATE OF COMPLIANCE







TABLE OF AUTHORITIES
CASE LAW Page

ACLU et al., v. National Security Agency, et al 30,34,35
Case No. 2:06CV10204 (Feb. 2006)
(U.S. Dist. Ct., E.D. Mich.) [Hon. Anna Diggs Taylor]





Albright v. Oliver 15, 16
510 U.S. 266, 114 S.Ct. 807, 810 (1994)





American Civil Liberties Union et al. v. National Security Agency et al. 30
Case No. 2: 06 CV 10204






Bell v. Hood 26,27
327 U.S. 678 (1946)




Berlin Democratic Club v. Rumsfield 41
410 F.Supp. 144, 150-51 (1976)



Bevins v. Six Unknown Named Agents of Federal
Bureau of Narcotics [DEA] 18,19
403 U.S. 388 (1971)





Black v. Sheraton Corp. of America 18,19
564 F.2d 531 (1977)




Black v. United States 19
285 U.S. 26 (1966)





Blake v. Wright 52
179 F.3d 1003, 1008 (6th Cir. 1999)



Branzburg v. Hayes 36,37
408 U.S. 665, 693 (1972)



Burnbaum v. United States 19
588 F.2d 319 (1978)




TABLE OF AUTHORITIES (Con’t)




CASE LAW Page








Clark v. Library of Congress 38
750 F.2d 89, 93 (D.C. Cir. 1984)




Clinton v. Jones 19,45,47
520 U.S. 681 (1997)





Conley v. Gibson 16
355 U.S. 41, 78 S.Ct. 99 (1957)




Craig v. Boren 38
429 U.S. 190, 194 (1976)




Dombrowski v. Pfister 40
380 U.S. 479, 486 (1965)




Dubbs v. Headstart, Inc. 23
336 F.3d 1194, 1201 (10th Cir. 2003)




Fair v. Kohler Die Co. 26
288 U.S. 22 (1913)



Friends of the Earth v. Laidlaw Envtl Servs., Inc. 33
528 U.S. 167, 180-81 (2000)





Hagans v. Levine 23,24,27,28,40,42
415 U.S. 528 (1974)





Haines v. Kerner 23
404 U.S. 519, 520-21, 92 S.Ct. 594, 596-97 (1972)








Hamdi 45
542 U.S. at 536








Hishon v. King and Spalding 16
467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984)






TABLE OF AUTHORITIES (Con’t)




CASE LAW Page






Hamdan v. Rumsfield 48
Case No. 05-184 (June 29, 2006)



In Re Agent Product Liability Litigation 18
373 F.Supp. 2d 7 (E.D.N.Y. 2005)



Jabara v. Kelley 38-39,42
476 F.Supp. 561, 568 (E.D. Mich. 1979)




Jabara v. Webster 39
691 F.2d 272 (6th Cir. 1982)




Jacobson v. Hughes Aircraft Co. 22
105 F.3d 1288, 1292 (9th Cir. 1997), amended on other grounds,
128 F.3d 1305 (9th Cir. 1997), reversed on other grounds,
525 U.S. 432, 119 S.Ct. 755 (1999)





Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit 20, 21
507 U.S. 163, 168 (1993)




Lee v. Clinton 22
290 F.3d 1025 (7th Cir. 2000)




Levitt v. Bear Stearns and Co. 23
340 F.3d 94, 101 (2nd Cir. 2003)




Lobser v. Thacker et al. 21
___ U.S. ___ (Slip Op.___, March 8, 2006)



Mistretta v. United States 45
88 U.S. 361, 382 (1989)





Moore v. Dempsey 18
261 U.S. 86, 91 (1923)








TABLE OF AUTHORITIES (Con’t)



CASE LAW Page





Moriarty v. Larry G. Lewis Funeral Directors LTD 22
150 F.3d 773, 777 (7th Circ. 1998)


Nesses v. Shepard 17
68 F.3d 1003, 1005 (7th Cir. 19975)



Ortez v. Washington County 23
88 F.3d 804, 807 (9th Cir. 1996)



Pangburn v. Culbertson 21
200 F.3d 65, 72 (2nd Circ. 1999)



Paton v. Law Prade 38
524 F.2d 862, 868 (3rd Cir. 1975)



Phonometrics, Inc. v Hospitality Franchise Systems, Inc 16
203 F.3d 790, 794 (Fed. Cir. 2000)




Presbyterian Church v. United States 42
870 F.2d 518 (9th Cir. 1989)



Public Citizen v. U.S. Dept. of Justice 46
91 U.S. 440, 468 (1989)



Rosado v. Wyman 26
397 U.S. 397 (1970)



Scheuer v. Rhodes 15, 22
416 U.S. 232, 94 S.Ct. 1683 (1974)




Sec-y of State of Md. v. Joseph H. Munson Co. 40
467 U.S. 947, 956-57 (1984)



Siderman DeBlak v. Republic of Argentina 53
946 F.2d 1450 (9th Circ. 1991)







TABLE OF AUTHORITIES (Con’t)


CASE LAW Page





Singleton v. Wulff 38
428 U.S. 106, 113 (1976)

SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 15, 16
88 F.3rd 780, 783 (9th Cir. 1996), cert. denied 519 U.S. 1028 (1996)




State v. Fayle 17
143 Ariz. 565, 658 P.2d 218 (Ariz. App. 1982)




Swierkiewicz v. Sorema N.A. 20, 21
534 U.S. 506, 512 (2002)




Tovrea Landon Cattle Co., v. Linsenmeyer 19
100 Ariz. 107, 412 P.2d 47 (1966)



Turkmen v. Ashcroft 37
No. 02-CV-2307 (EDNY, May 30, 2006)



United States v. Koyomejian 18,29,32
980 F.2d 536 (9th Cir. en banc), cert. denied 946 F.2d 1450 (1991)




United States v. Prat 19
913 F.2d Supp. 368 (1990), cert. denied 11 S.Ct. 681, 498 U.S. 1028 (1990)





Virginia v. American Book Sellers Assoc., Inc. 40
484 U.S. 383, 392-393 (1988)



Youngstown Sheet and Tube Co. v. Sawyer 46,51
43 U.S. 579 (1952),






TABLE OF STATUTES AND RULES





CONSTITUTION, STATUTES, AND RULES Page

U.S. Constitution


First Amendment 29,40,46
Fourth Amendment 8,29,46,52
Sixth Amendment 46
Fourteenth Amendment 29,46





Statutes
28 U.S.C. § 1291 24
28 U.S.C. § 1331 24
28 U.S.C. § 1343 23
28 U.S.C. § 2281 26
42 U.S.C. § 1983 21

Federal Administrative Rules
F.R.C.P. Rule 12(b) 14,16
F.R.C.P. Rule 9(b) 20
F.R.E. Rule 201 35
F.R.E. Rule 201(2)(f) 30
F.R.E. 902 and Rule 1005 30




----------------------------------------




I.
STATEMENT OF ISSUES PRESENTED FOR REVIEW



1. Plaintiff’s Verified Complaint is substantially clear and definite as to the factual basis of Defendant’s Program and pattern of admitted illegal conduct, causing the deprivation of Plaintiff’s civil rights. The Court automatically has subject matter jurisdiction under the substantiality doctrine, and the dismissal of the case was severe due process prejudicial error requiring reversal.



2. Defendant’s claims that Plaintiff’s Verified Complaint has facts which are “bizarre and implausible” are specious at best on grounds Defendant Bush has come out of the closet and his shadow government, admitting his Program has been and continues to be engaged illegal electronic perpetual invasion of privacy through the use of wireless electronic surveillance, torture, blatant violation and deprivation of Americans’ (Plaintiff Schlund) constitutional rights. The court cannot pretend to be fair and impartial after allowing a lawsuit against President Clinton to go forward with no witnesses to the crime and questionable physical evidence. That ruling was bizarre, implausible, and unprovable. Plaintiff Schlund’s case has thousands of witnesses and train loads of quality evidence, and it totally provable.



3. Defendant Bush’s Program is an illegal “Drag Net” activity designed to deprive Plaintiff of his constitutional rights, using electronic wireless telemetry systems/products for illegal surveillance and torture.




II.


STATUTES INVOLVED





This case involves all of the statutes and rules set forth in the Table of Statutes and Rules, supra, which are incorporated herein by this reference.


III.
COUNTER-STATEMENT OF THE FACTS AND CASE

In the interests of judicial economy, Plaintiff Schlund incorporates by this reference his First Amended Verified Complaint for Deprivation of Civil Rights Through Racketeering Activities filed September 15, 2005 (Excerpt No. 1), Plaintiff’s Opposition to Motion to Dismiss (Excerpt No. 3), the United States District Court Docket (Excerpt No. 7), and his Statement of Facts in his Opening Brief (“AOB”, pgs. 8-38)*. Docket No(s). 1 through 58 reveals an extensive, unnecessary struggle by
Plaintiff to protect his civil rights against Magistrate Judge Virginia Mathis prior to the Assistant Attorney General, Richard Glenn Patrick, even entering an appearance on behalf of Defendant Bush (Docket No(s). 1-24). Plaintiff Schlund filed his Complaint on August 15, 2003 (Docket No. 1) and was forced to litigate the matter exclusively against Magistrate Judge Virginia A. Mathis (“Judge Mathis”) improper and unmeritorious interference activities which included frivolous orders to show cause why the case should not be dismissed for alleged service of process, forcing double service of process on Defendant (Excerpt Nos. 1-6), stalling and denial of Plaintiff’s Motion to Perpetuate Testimony (Excerpt No. 7), stalling and denying Plaintiff’s Motion for Deposition Prior to Discovery (Excerpt No. 8), stalling and denial of Plaintiff’s Motion for Injunctive Relief (Excerpts No. 9-11), stalling and denial of Plaintiff’s Motion for Order for Disability Accommodation (Excerpt No. 12), stalling and denial of Plaintiff’s Motion for Injunctive Relief from Torture and Invasion of Privacy (Excerpt No. 13), stalling and denial of Plaintiff’s Motion for Scheduling Conference, as required under the rules (Excerpt Nos. 14 and 15), and denial orders thereon (Excerpt Nos. 16-20) until over eight months later Defendant’s attorney filed a Notice of Appearance on April 22, 2005 (Excerpt No. 25). Two months later, on or about June 1, 2005, Defendant George Bush, in his capacity as President of the United States, filed a Motion to Dismiss only (Excerpt No. 27)**. On June 18, 2005,
Plaintiff filed a Response to Defendant’s Frivolous Motion to Dismiss/Strike


---------------------------------------------------------


* Matters of Form: Plaintiff refers to his Opening Brief as (“AOB”) and Defendant’s Response Brief (“R.B.”), followed by a page number. He refers the Excerpts to Plaintiffs Opening Brief as (“Excerpt No.” followed by the number of the Excerpt), and his reference to his First Amended Verified Complaint as (“Complaint”). Plaintiff refers to the United States District Court Docket as the (“Docket”) followed by the docket number.


------------------------------------------------------------


** Defendant Bush was served in his individual capacity (Excerpt Nos. 17, 21, and 22), as well as in his capacity as
President. In his individual capacity, Defendant has never been represented by an attorney, never filed an Answer or
responsive motion to the Complaint, yet it was dismissed by the judge prior to Plaintiff entering a default against him.


------------------------------------------------------------



(Excerpt No. 30), a Reply (Excerpt No. 31), and Objection (Excerpt No. 32) to protect his constitutional due process rights; and Judge Mathis dismissed the case with prejudice on July 21, 2005 (Excerpt No. 33). Judgment was entered July 21, 2005 (Excerpt No. 34).

On August 2, 2005, Plaintiff filed a Motion for Relief from the Order on Motion to Dismiss on grounds of due process violations, invasion of privacy and torture (Excerpt No. 35), which Defendant Bush responded to (Excerpt No. 36). Plaintiff replied (Excerpt No. 37), and the Court granted the Motion on August 16, 2005 and vacated its judgment, ordering Plaintiff to amend his Complaint (Excerpt No. 38). On September 15, 2005, an easily understandable Amended Complaint was filed setting forth the facts of Defendant’s pattern of illegal conduct used in his Program, resulting in depriving Plaintiff of his civil rights through racketeering activities (Excerpt No. 1). Demand for jury trial was filed. Id. Plaintiff claimed Defendant Bush in his individual capacity continued up to and through becoming appointed as the President of the United States through fixing of the presidential election, which was forecasted over 20 years in advance by Plaintiff, and Defendant has engaged in this continuous conduct, which included but is not limited to, perpetual electronic invasion of privacy through warrantless searches and surveillance through the use of wireless electronic telemetry system(s) and associated electronic product(s) under various “pretexts,” causing him injury and damages, acknowledged as Program protocol (Excerpt No. 1, pgs. 1-20). He properly alleged $20 million in compensatory damages, or according to proof; $40 million in special damages, or according to proof; and other specified damages allowed under federal statute (Excerpt No. 1, pg. 19), contrary to Defendant’s statement in his Response Brief.

Again, Plaintiff filed his Motion for Preliminary Injunction to stop the torture, electronic invasion of his privacy, harassment, and the deprivation of his rights (Excerpt No. 41), and on October, 5, 2005, Defendant again filed his Motion to Dismiss (Excerpt No. 43), asserting Defendant Bush was not engaged in any electronic surveillance, torture of Plaintiff, or any other violation of his constitutional rights and that Plaintiff’s assertion of same in his Verified Complaint was “bizarre” and “unintenuated” (Excerpt No. 3). Defendant Bush and the U.S. District Court also intentionally “profiled” and mischaracterized Plaintiff’s Complaint as a RICO case when it was not, discriminating against Plaintiff and violating his rights (Docket, p. 1).

In fact, because it became blatantly obvious the dishonorable Judge Mathis had targeted the case for dismissal (after unilaterally practicing law on behalf of Defendant Bush prior to Defendant’s attorney’s Notice of Appearance supra.), he filed his Ex-Parte Motion for an Order Shortening Time to Hear Determine a Motion for Emergency TRO and Request for Hearing Thereon (Excerpt No. 46). The Court denied the motion based on Defendant’s illegal perpetual electronic surveillance and torture as “moot” (Excerpt No. 51) despite it was a proper legitimate motion based on the Verified Complaint, affidavits of Charles Schlund, and other evidence, at least justifying hearing on the matter, and the continuous findings of fact and conclusions of law requested by Plaintiff (Docket No. 45 and 48), egregiously violating and further depriving him of his civil rights under the First and Fourth Amendment. Each time Plaintiff filed legal papers in the courts the government threatened to murder Plaintiff Schlund and tortured and deprived Plaintiff Schlund of sleep in the obstruction of justice and witness tampering by the United States Government in the protection of the Bush family.


On November 22, 2005, the Court then entered its final order dismissing Plaintiff’s case “with prejudice,” having the actual effect of depriving him of his speech and due process rights under the First and Fourth Amendment (Docket No. 52).


On December 21, 2005, Plaintiff Schlund filed a Motion for Reconsideration of the Order dated November 21, 2005 and Continuing Objection to Order (Excerpt No. 55) and filed a Motion to Strike Improper Words from the Order and Judgment (Excerpt No. 51 and 52) when dishonest


Judge Mathis (not the Court) carefully inserted the words, “The Court believes that Plaintiff is attempting to allege (1) President Bush and his predecessors have implanted a mind control device (no such words were pled in the Complaint) in his head which is used to torture him; (2) President Bush and his alleged co-conspirators have committed various illegal acts; and (3) Defendants have used the courts to prevent Plaintiff from pursuing his claims” (Excerpt No. 4). It is blatantly dishonest for Judge Mathis to impart these influential and workable words into her Order with a release valve that they are based on her “belief,” knowing there are no such facts alleged anywhere in the Complaint to support such belief and that mind control devices in Plaintiff’s head were never mentioned and do not exist. Plaintiff clearly alleged a Program protocol use of wireless electronic telecommunication systems/devices are used, not mind control devices (Excerpt Nos. 1 and 3). The Judge’s insertion of these contrived words is specific in nature to fit the profile for her dishonest or lazy intellectualism to dismiss the case and render all motions moot. Judge Mathias’ activity aforesaid mirrors the Program protocol pattern, engaging in a concerted effort with Defendant to achieve the systematic deprivation of Plaintiff’s civil rights, violating his due process rights under the Fourth Amendment, violating her written oath to uphold the Constitution. The said facts are admittedly self-evident in her own Order (Excerpt Nos. 1, 3 and Docket No. 52). Accurately, Plaintiff has alleged, that Defendant Bush and his “co-conspirators have committed various illegal acts” is true, as stated by Judge Mathis, but then she ignores the verified facts specifically understood by her and Defendant Bush, despite Defendant’s claims he can’t understand the Complaint as pled (Excerpt No. 4), which she prejudicially accepted as true. This is an undisputed fact of dishonesty by Judge Mathis as well. In fact, she continues by stating it is her understanding Plaintiff alleges Defendants have used the courts to prevent Plaintiff from pursuing his claims, which is also true in his Verified Complaint. She then dishonestly discounts this verified assertion and then to suit her “belief” then systematically satisfies Defendant’s Program protocol of the dishonest position to cover up the illegal activity, exactly as alleged in Plaintiff’s Verified Complaint, admitted in the Dismissal Motion, violating and systematically depriving Plaintiff of his due process rights under the Fourth Amendment (Excerpt Nos. 1 and 4). Each of these issues was succinctly addressed by Plaintiff in his opposition to the dismissal motion (Excerpt No. 3). Factually, the staunch reality is that dishonest Judge Mathis violated her oath to uphold the United States Constitution and to act fairly, impartially, objectively, and competently by “believing” every position asserted by Defendant while flatly rejecting every truthfully asserted position supported in fact and law of Plaintiff Schlund, violating his due process rights under the Fourth Amendment of the Constitution (Excerpt Nos. 1-58). In fact, it included the denial of Plaintiff’s Motion to Strike the Fabricated Words by Judge Mathis from the Order (Excerpt No. 51) and Judgment (Excerpt No. 52), which she made up to support her procedural premature dismissal of Plaintiff’s case on a hyper-technical ground which didn’t exist in the first place.


In fact, the judge knew and has known at all times that Defendant Bush’s acts and conduct, as directly related to his admitted Program of illegal and unconstitutional electronic surveillance, warrantless searches or searches done with warrants obtained under perjury and the use of torture and perpetual surveillance, violates and deprives individual Americans to their rights to speech and privacy and the right not to be tortured, exactly as Plaintiff forecasted twenty-eight years ago and as alleged in his Complaint he is being subject to (Excerpt No. 1), which facts are and have been undisputable. Plaintiff has thousands of witnesses that can and will testify against the government’s use of torture in the deprivation of civil and constitutional rights. The only issue which remains presently is whether or not President Bush, in his presidential capacity, had a legal justification which will prevent him from being criminally prosecuted, impeached, and/or jailed, which he is facing at present. Nobody is above the law – not Defendant Bush in his individual capacity. Not Defendant Bush in his capacity as President of the United States. Nor is any individual, irrespective of the entity associated with who violates the constitutional rights of others. And that includes a corrupt judge connected to the illegal activities, if the connection can be proven, such as Plaintiff has alleged he can prove based on the evidence, which has been thwarted at every procedural level, violating his due process and equal protection rights (Excerpt No. 1 and the Docket, incorporated by this reference).





IV. LEGAL DISCUSSION



A. DEFENDANT BUSH’S MOTION TO DISMISS HAS CONCEDED AND ADMITTED SUFFICIENT FACTS TO ESTABLISH HIS ILLEGAL ACTS AND CONDUCT ARE UNCONSTITUTIONAL, DEPRIVING APPELLANT OF HIS CIVIL RIGHTS, AS PLED IN HIS VERIFIED COMPLAINT.


Defendant Bush states in his Response Brief (“RB” followed by page number) his admission that he understands the nature of the factual averments in Plaintiff’s Complaint as unsubstantiated “conspiracy theories” (RB, pg. 6)*.


At the initial stage of the pleading, all that is required is for Plaintiff to place Defendant on reasonable notice of the theory of the case. At the initial stage of the pleadings, all lawsuits are “unsubstantiated theories” which is


--------------------------------------------------------------------

* Defendant Bush’s use of the word “unsubstantiated” is a self-serving and unsubstantiated statement concerning the substitive merits of Plaintiff’s verified and factual allegations pled in his Complaint which are at issue on ultimate and specific facts. He also uses the term “attenuated” which means to make slender or thin, to reduce or dilute in the same fashion. However, under the “Theory of Case Doctrine,” it specifies Plaintiff must plead facts, strong or weak or thick or thin, which the right of action is claimed to exist and the basis of the liability or grounds for a defense. Black’s Law Dictionary, 6th Ed. (1998).


---------------------------------------------------------------------




exactly the purpose for a discovery phase, to force Plaintiff to conduct discovery to substantiate his theories set forth in his alternative causes of action. The ultimate facts at issue supported by specific facts which are limited and set forth in Plaintiff’s Complaint (Excerpt No. 1) address the realities of Plaintiff’s personal knowledge while working with the Defendants and those connected and related to Defendant Bush in his individual capacity and continuously after his appointment to the position of President of the United States (Excerpt No. 1). The Complaint addresses the realities of implant technologies and the ongoing advances of this technology integrated with wireless electronic telemetry used in conjunction with computer systems and wireless telemetry product(s), including but not limited to such implant technologies, easily understandable in the Complaint (Excerpt Nos. 1 and 3), as Defendant admits (RB, pgs. 6-8). The fact that Defendant disagrees is exactly what defendants do in an attempt to avoid the personal liability for injury and damages for the wrongful acts and conduct as set forth in Plaintiff’s Complaint (Excerpt Nos. 1 and 3)**.



--------------------------------------------------------------------


** Defendant talks out of both sides of his mouth. First, Defendant takes the position he cannot understand the nature of Plaintiff’s Complaint, because it is rambling, etc. Then in his Response Brief he takes the specific position he understands the nature of the Complaint, disagrees with its substance, and self-servingly concludes, because it has a conspiracy tone, it cannot be proven at trial (RB, pg. 6). Conspiracy theories would never have been created by attorneys unless facts existed to prove (substantiate) the theory of the case in a court of law. Attorneys have been pleading and proving conspiracy theories since the origin of the United States.


-------------------------------------------------------------------




Defendant next admits he understands the factual averments of Plaintiff’s Complaint in great detail concerning who, why, what, when, where, and how (RB, pgs. 6-7), including the illegal use of electronic wireless telemetry and associated surveillance products (RB, pgs. 8-9), and then takes a ludicrous position that a factual reality of this type of conduct by a defendant does not exist. This frivolous decision stands directly in the face of controlling case precedent cited by Plaintiff (Excerpt No. 3), with judgments against individuals and the agencies, which include the CIA, the FBI, DEA, and other presidents who have violated the law who have been found not to be above the law, specifically using electronic wireless telemetry surveillance for the illegal invasion of a person’s rights (see, Excerpt No. 3, pgs. 10-21), irrespective how bizarre it may sound (Excerpt No. 3, pg. 21); Plaintiff’s AOB, pgs. 38-45 (on point). Plaintiff has admitted in his dismissal motion the Complaint is true.


Defendant has filed a F.R.C.P. Rule 12(b) dismissal motion in a juxed position claiming he doesn’t understand it and then admits in his Plaintiff Response Brief that he does understand it but then concludes it should not go forward because he doesn’t believe it (RB, pgs. 8-12). Defendant Bush does not claim it should be dismissed because it asserts a legal theory that is not causable as a matter of law. Nor does Defendant ask that it be dismissed because it fails to allege sufficient facts to support a causable legal claim, as required. SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3rd 780, 783 (9th Cir. 1996), cert. denied 519 U.S. 1028 (1996). In fact, as a matter of law, upon Defendant’s dismissal motion being filed, under Rule 12(b), the Court must presume that all well pleaded allegations are true, and it must resolve all doubts and inferences in Plaintiff’s favor. It is also required to view the pleading allegations (ultimate and specific facts) in the light most favorable to the Plaintiff, who is the non-moving party. Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 810 (1994); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974). Instead, the United States District Court Judge Mathis dis-presumed the noticed pleading was true, failed to resolve all doubt and inferences in Plaintiff’s favor, and failed to view the pleading in the light most favorable to Plaintiff, required by the United States Supreme Court (Id.). This had a severe prejudicial effect on Plaintiff by her dismissing his case with prejudice (Excerpt Nos. 4 and 7; Docket No. 52). Prejudicing Plaintiff, knowing the matter would be appealed, Judge Mathis intentionally fabricated (or with a conscious gross disregard for the truth) facts, inserting those in the judgment (Excerpt No. 52) and blatantly failed to grant Plaintiff’s motion to strike the fabricated words from her judgment (Excerpt 54), forcing Plaintiff to amend his Notice of Appeal (Excerpt No. 58). An obvious and intentionally conscious, gross disregard for the truth and Plaintiff’s constitutional rights to due process under the Fourth Amendment and the premature cut-off of his right to a jury trial, in violation of her oath of office, ratifying Defendant’s perpetual electronic surveillance and torture of Plaintiff as alleged in his Complaint, further depriving him of his civil rights. Judge Mathis also temporarily placed Defendant Bush as an individual and in his capacity as President above the law, in violation of her obligation to follow the law (AOB, pgs. 31-41) and supra.


There is a powerful presumption against dismissing Plaintiff’s Complaint at the initial stage if the Complaint contains enough detail to allow the Defendant to answer, such as here. See, Phonometrics, Inc. v Hospitality Franchise Systems, Inc., 203 F.3d 790, 794 (Fed. Cir. 2000) [noting that the Complaint “contains enough detail to allow the Defendants to answer. Rule 12(b) requires no more.”]; SmileCare Dental Group and Albright, supra. Plaintiff’s Complaint may be dismissed only if Plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957); Hishon v. King and Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984). It is not beyond doubt that Plaintiff can prove “a set of facts” in support of his deprivation of civil rights claim entitling him to relief (Excerpt No. 1). In fact, defendant admits he has pled so much detail of facts of his personal knowledge, while Defendant takes the position of his self-serving conclusion it is a frivolous claim (Excerpt Nos. 1 and 3; RB, pg. 9), which is frivolous and specious at best. Notwithstanding such fact, Plaintiff has the constitutional “right” to have his lawsuit heard by a jury of his peers (no matter how bizarre it may sound) to the Defendant or to the Court. State v. Fayle, 143 Ariz. 565, 658 P.2d 218 (Ariz. App. 1982), the law and the Central District of Arizona on point on the issue. Plaintiff has repeatedly told the Court, in writing, that he can prove the set of facts in support of his claim with his own testimony, many witnesses, and experts as well (Excerpt Nos. 1 and 3; Docket No. 41). In fact, Judge Mathis intentionally cut off Plaintiff’s legitimate and proper discovery pursuits before and after Defendant’s attorney entered an appearance on the record while he was in the process engaging in discovery to prove his case (Docket Nos. 8, 9, 14, 19, and 49). As far as the Defendant, his attorney, and Judge Mathis being accused of intentionally depriving Plaintiff of his due process rights under the Fourth Amendment and their concerted effort and success in corrupting the federal judicial process so as to obtain a favorable judgment for Defendant Bush by dismissal with prejudice, such claims are not barred. Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir. 19975). To bar such claim would effectively eliminate all federal remedies other than an appeal to the Circuit Court or/and U.S. Supreme Court, and that remedy would be ineffectual because Plaintiff Schlund could not present evidence showing that the judicial proceeding had been a farce, such as was done here. See, Moore v. Dempsey, 261 U.S. 86, 91 (1923) (Holmes J.); one cannot present evidence to an Appellate Court. In the deprivation of civil rights context, whether through wireless electronic trespass, invasion of privacy through perpetual surveillance involved in illegal discrimination profiling or torture, the individuals involved in such conduct are liable for such injury and damages as a matter of law (AOB, pgs. 38-45). See also, Black v. Sheridan Corp. of America, 564 F.2d 531 (1977) [continued electronic trespass through the use of wireless electronic telemetry and associated product(s) shackled FBI agents with individual liability for that and blacklisting, depriving him of his civil rights]; In Re Agent Product Liability Litigation, 373 F.Supp. 2d 7 (E.D.N.Y. 2005) [ individuals involved in use or manufacturing of product(s) integrated into the various systems technology to violate and/or depriving Plaintiff of civil rights are individually liable for injury and damages to Plaintiff]; U.S. v. Koyomejian, 980 F.2d 536 (9th Cir. en banc), cert. denied 946 F.2d 1450 (1991) [wireless electronic telemetry used to trespass and violate Plaintiff’s rights to privacy and other parties’ coming in contact with subject target of surveillance activities, which gives rise to a claim against the individuals involved]; Tovrea Landon Cattle Co., v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966); Bevins v. Six Unknown Named Agents of Federal Bureau of Narcotics [DEA], 403 U.S. 388 (1971); United States v. Pratt, 913 F.2d Supp. 368 (1990), cert. denied 11 S.Ct. 681, 498 U.S. 1028 (1990) [ prosecutorial misconduct deprivation of Plaintiff’s rights – the individual is liable to Plaintiff]; Black v. Sheraton Corp. of America, 564 F.2d 531 (1977) [various government employees individually sued and liable for wireless telemetry trespass and invasion of privacy and cannot use the shield of immunity against their individual liability for deprivation and violation of Plaintiff’s rights and shackled with liability for the damages]; likewise, in Burnbaum v. United States, 588 F.2d 319 (1978) and earlier in Black v. United States, 285 U.S. 26 (1966), various government employees’ immunity defenses failed on violation or/and deprivation of civil rights protected under the United States Constitution. Nobody is above the law, and especially Defendant Bush as an individual or in his capacity as President of the United States when he has violated and deprived Plaintiff of his civil rights protected under the Constitution, as alleged in the Complaint (Excerpt Nos. 1 and 3; AOB, pgs. 38-45). Clinton v. Jones, 520 U.S. 681 (1997) [“Nobody is above the law.” Especially Defendant Bush is liable for torture of Plaintiff (Excerpt Nos. 1 and 3; AOB, pgs. 40-46; AOB, p. 27, ftn. 6).


Defendant Bush’s focus on the “conspiracy” issues as his primary basis is a frivolous argument. Whether the allegations of “conspiracy” are sufficiently informative to survive a dismissal, this issue is always a close one, decided in favor at the “initial” stage of the notice pleading stage. Although conspiracy is not something that Rule 9(b) of the Federal Rules of Civil Procedure requires be proved with particularity or even alleged with particularity (although Plaintiff did allege in particularity the ultimate and specific facts supporting the claim related to deprivation of civil rights); and so a plain and short statement would do, despite it is construed otherwise. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Leatherman v. Tarrants County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). Defendant admits notice and precise understanding of the conspiracy claim (RB, pgs. 6-11) but then improperly concludes the Court lacked jurisdiction to determine it. Defendant’s understanding, admits the Court has jurisdiction to hear it under the substantiality doctrine by his itemization of the details of his understanding in his Brief (Id.). Defendant has waived his argument, rendering it moot as well. Defendant acknowledges and actually reiterates in writing his complete understanding that Plaintiff has alleged the parties, the general purpose, and the approximate dates of the conspiracy, which satisfies the conspiracy test for conspiracy allegations to withstand dismissal. Swierkiewicz, Leatherman, when the allegations are repetitious as to the parties and element of the conspiracy are identified, the timeframe of the conspiracy is alleged to have begun and alleged to be continued through the years; and its purpose is to target and deprive Plaintiff of his civil rights and torture Plaintiff, and the rights violated are stated it is deemed sufficiently pled; and the Court must deny a dismissal motion filed by the Defendant. Pangburn v. Culbertson, 200 F.3d 65, 72 (2nd Circ. 1999)**.



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** The Seventh Circuit Court of Appeals case, Lobser v. Thacker et al., decided March 8, 2006, involved a civil rights suit under 42 U.S.C. § 1983 against more than forty individuals who she alleged conspired to defraud her by corrupting her divorce (judicial) proceedings, which included various attorneys and the judge and resulting in the deprivation of her civil rights. The Appellate Court found that the District Court’s dismissal of her lawsuit with prejudice after amending her Complaint twice, constituted prejudicial error and reversed. Plaintiff Lobser represented herself in a 71-page complaint divided into 115 paragraphs, somewhat disorganized and repetitious, having a paranoid quality, with some of the allegations bordering on, perhaps crossing over into, the fantastic, on a conspiracy theory spanning over three years, involving a couple of judges, and couple of attorneys, and a court reporter. The Court stated, “It is highly improbable that the suit has any merit, but the allegations are not so fantastic that the suit can be dismissed out of hand, as being obviously frivolous as in Lee v. Clinton, 290 F.3d 1025 (7th Cir. 2000).” [Lee alleged, “The United States and China, with a conspiracy to ‘bio-chemically and bio-technologically affect and invade’ various people, including Lee, with a ‘mind-reading and mental torture device’ called ‘Matret” with the use of other space technologies that would allow Matret victims to ‘relocate to Matret-free planets.’” The abundance of Circuit and Supreme Court of the United States case law supports Plaintiff’s claims of Defendant Bush’s use of electronic wireless telemetry has already been decided by the Ninth Circuit and the Supreme Court as factually valid, including accompanying conspiracy theories subject to proof.


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The District Court is not allowed to decide the winners or losers at the initial pleading stage, or even examine the “believability of Plaintiff’s claims.” Jacobson v. Hughes Aircraft Co., 105 F.3d 1288, 1292 (9th Cir. 1997), amended on other grounds, 128 F.3d 1305 (9th Cir. 1997), reversed on other grounds, 525 U.S. 432, 119 S.Ct. 755 (1999). The Court commits prejudicial error upon dismissal merely because the District Court doubts Plaintiff’s allegations or suspects that Plaintiff will ultimately not prevail at trial, causing severe prejudicial error if dismissed at the initial pleading stage. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974)*.



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* The Supreme Court of the United States, in Scheuer v. Rhodes, held, “The issue is not whether a Plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” See also Moriarty v. Larry G. Lewis Funeral Directors LTD, 150 F.3d 773, 777 (7th Circ. 1998) [Rule does not allow judge to follow path “that seems ‘most likely’ on the basis of the complaint”]; Levitt v. Bear Stearns and Co., 340 F.3d 94, 101 (2nd Cir. 2003); Dubbs v. Headstart, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) and an avalanche of other citations omitted for judicial economy. Plaintiff Schlund is in Pro Per, and his pleadings are deserved to be viewed with considerable liberality and are held to a less stringent standard. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596-97 (1972) and Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996).



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