Free Reply to Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD G. PATRICK Assistant U.S. Attorney Arizona State Bar No. 5148 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Charles August Schlund, III, an individual CIV-03-01590-PHX-VAM Plaintiff, v. George W. Bush, President of the United States, a Sovereign Nation, George W. Bush, an individual; Does 1-10, individuals; Does 11-20, entities, Defendants. Before addressing what plaintiff does say in opposition to the motion to dismiss, it is important to highlight what he does not say. First, with respect to defendant's statute of limitations arguments, plaintiff does not dispute that the allegations of his first amended complaint that relate to alleged acts/omissions in the 1970s, 1980s and 1990s (at least through 1998) cannot serve as a basis for relief due to the running of the various statutes of limitations. Second, plaintiff states, in response to defendant's respondeat superior argument, that he "is not suing Defendant Bush individually or/and Bush in his capacity as President due to the wrongful acts and conduct of any asserted `agent'..." Opposition, p. 16. Third, plaintiff fails to respond to movant's argument that his Title VI, Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et. seq. claims should be dismissed. Fourth, he fails to specifically respond to movant's arguments for dismissal of his claim(s) under the Religious Freedom Restoration Act. Fifth, plaintiff has no response to defendant's motion to REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS

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1 dismiss his Convention Against Torture claim(s). Sixth, plaintiff does not dispute that he has 2 not exhausted his Federal Tort Claims Act administrative remedy. 28 U.S.C. § 2675(a). 3 Accordingly, plaintiff's historical claims from the 1970s, 1980s and 1990s (at least through 4 1998), his respondeat superior claims against the President, his 42 U.S.C. §§ 2000d, et. seq. 5 claims, his Religious Freedom Act claims, his Convention Against Torture claims and all 6 common law tort claims under the Federal Tort Claims Act should be dismissed 7 In movant's motion to dismiss, he argued several deficiencies with respect to plaintiff's

8 RICO claims. In opposition, plaintiff asserts that his "has not pled a racketeering cause of 9 action." Opposition, p. 17. Accordingly, plaintiff's First Amended Complaint, to the extent he 10 premised relief therein on 18 U.S.C. § 1964, should be deemed withdrawn and/or dismissed. 11 Next, the remainder of plaintiff's claims against the defendant are barred by the

12 President's absolute immunity from suit for official acts in pursuit of his powers and 13 responsibilities as President of the United States of America. Citing Clinton v. Jones, 520 U.S. 14 1636 (1997), plaintiff asserts that the President's immunity from suit is not absolute. His 15 reliance on Clinton v. Jones is misplaced. In Clinton v. Jones, the alleged misconduct by then16 Governor William Jefferson Clinton "occurred before he was elected" to the Office of the 17 President. Id. at 686. Here, any such pre-presidential acts by defendant cannot support claims 18 for relief because such claims are barred by the various statutes of limitations. As President, any 19 alleged actions within the outer perimeter of his authority cannot support civil damage claims 20 due to defendant's absolute immunity from suit. 21 Finally, plaintiff boldly asserts that this Court cannot dismiss his First Amended

22 Complaint "no matter how bizarre it may sound" because of the liberal deference accorded his 23 verified pleading under Rule 12 standards. Opposition, p. 21. In effect, plaintiff argues that the 24 Court has no choice but to accept his allegations and, thereby, deny the motion to dismiss. 25 Under Rule 12 precedent, however, the Court is not "required to accept as true allegations that 26 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell 27 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Nor is the Court required to 28 2

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1 "assume the truth of legal conclusions merely because they are cast in the form of factual 2 allegations."1 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Viewed

3 under these governing contexts, the constitutional tort allegations against the President do not 4 survive movant's Rule 12 attack. 5 Based upon movant's motion to dismiss and the parties' pleadings with respect thereto,

6 this action should be dismissed. 7 8 9 10 11 12 13 14 CERTIFICATE OF SERVICE 15 I hereby certify that on November 15, 2005, I served the attached document by mail on 16 the following, who are not registered participants of the CM/ECF System: 17 Charles August Schlund, III 8520 North 54th Drive 18 Glendale, Arizona 85302 s/Diana Henson ______________________________ 20 U.S. Attorney's Office 19 21 22 23 24 25 26 Nor does plaintiff's First Amended Complaint sufficiently plead both the causation-infact and proximate causation elements of a constitutional tort claim against the movant. Leer 27 v. Murphy, 844 F.2d 628 (9th Cir. 1988). 28 3
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Respectfully submitted this 15th day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/Richard G. Patrick RICHARD G. PATRICK Assistant U.S. Attorney

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