|Action for Justice - Pro Se
|IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
|Karen Marie Kline,
v. CIV 04-309 ACT/DJS
James Hall, Judge,
James Hall, Judge,
Art Encinias, former Judge,
First Judicial District Court
First Judicial District Court Clerk,
New Mexico Court of Appeals,
COMES NOW, Karen Kline, Plaintiff, pro se, and files this
Objection and Memorandum:
My Complaint, though imperfectly written, is based upon the fact that
I have a disability. My disability is not that I am forgetful as opposing
counsel implies, but rather is that I have lost two-thirds of my
working memory and about half of my processing speed according to
the results of tests administered to me through the Department of
Vocational Rehabilitation. My disability keeps me from being able to
work at a job to earn a living, among other things.
I am complaining about Judge Encinias when he didn’t have
jurisdiction because there was an automatic stay in place. He
discriminated against me and deprived me of my rights as a disabled
person under the ADA. Because he didn’t have jurisdiction he didn’t
“Requirements of subject matter and personal jurisdiction are
conjunctional, as both must be met before a court has authority to
adjudicate rights of parties to a dispute.” Rankin v. Howard, 633 F.
2d 844 (1980).
“If a court lacks jurisdiction over a party, then it lacks jurisdiction to
adjudicate the party’s rights, whether or not the subject matter is
properly before it.” Ibid.
“A judge who acts in the clear and complete absence of personal
jurisdiction loses his judicial immunity.” Ibid.
“When a judge knows that he lacks jurisdiction, or acts in the face of
clearly valid statutes or case law expressly depriving him of
jurisdiction, judicial immunity is lost.” Ibid.
U.S.C., Title 11, Sec. 362. Automatic stay
(a) Except as provided in subsection (b) of this section, a petition filed
under section 301, 302, or 303 of this title, or an application filed
under section 5(a)(3) of the Securities Investor Protection Act of
1970, operates as a stay, applicable to all entities, of –
(1) the commencement or continuation, including the issuance or
employment of process, of a judicial, administrative, or other action
or proceeding against the debtor that was or could have been
commenced before the commencement of the case under this title, or
to recover a claim against the debtor that arose before the
commencement of the case under this title...
(h) An individual injured by any willful violation of a stay provided by
this section shall recover actual damages, including costs and
attorneys' fees, and, in appropriate circumstances, may recover
“Individual injured by willful violation of automatic stay has private,
statutorily created remedy for damages, costs and attorney fees.”
Petitt v. Baker, C.A.5 (Tex.) 1989, 876 F.2d 456.
“Willfulness requirement supporting recovery of damages for violation
of stay refers to deliberateness of conduct and knowledge of
bankruptcy filing, not to specific intent to violate court order.” In re
Kilby, Bkrtcy. M.D.Fla. 1989, 100 B.R. 579.
There is a clearly valid United States law which gives me rights and
deprives Judge Encinias of jurisdiction. In the face of these facts
Judge Encinia doesn’t have immunity and this case should not be
If facts are in dispute, this case must be adjudicated and not
In regard to Judge Hall, my Complaint, which is clearly imperfectly
written, is not meant to complain about Judge Hall’s decisions. I am
complaining about the fact that he didn’t accommodate my disability
and when he didn’t accommodate it, he was discriminating against me
and denied me access to due process. It’s not like I came to court and
said he had to give me a hearing aid because I couldn’t hear; it’s the
fact that I came to court and said I had a disability and he thereafter
made it impossible for me to exercise my right to due process because
he wouldn’t accommodate my disability as for instance he said I
should just say whatever I wanted and not read. The way that he
treated me in relation to my disability scared me and that further
impaired my ability to present my case and subsequent cases. If he
hadn’t discriminated against me he might have made different rulings
because I could have adequately presented my case, but the rulings
themselves are things I’ve suffered as a result of discrimination and
denial of due process. To me they are like broken limbs I’ve suffered
as a result of a dangerous sidewalk. My broken limbs can’t be
unbroken, but the dangerous sidewalk can be made safe. What I am
complaining about is being denied access to due process and equal
protection under the law because I have a disability, to me that is
dangerous and unsafe and I want that changed. When I talk about
Judge Hall not following rules, I’m doing so because as a disabled
person with a mental disability I don’t have the capacity to rethink
things quickly, so I can’t figure out what to do when I prepared in
relation to rules, and then the rules aren’t followed; having rules that
aren’t followed in my case is like having a wheelchair ramp that is
taken away when a person in a wheelchair wants to use it. This is
particularly important because my disability prevents me from
employment and I have little money and must represent myself or
forego any hope of justice. I have a right to justice even if I am
disabled and poor.
I don’t believe Judge Hall had jurisdiction over me when he was
violating the ADA which is a United States law. Further, I believe that
when he denied that part of me which is disabled, he lost jurisdiction
over me because I am part and parcel disabled.
If facts are in dispute, and it appears in this case that Defendants are
disputing my disability and other facts, then it is well settled that the
case must not be dismissed.
In terms of the other defendants, I filed a tort claim notice in keeping
with the state tort claims act in the mistaken belief that was what
caused immunity to be waived. Since I now see that the state court,
etc. have not waived immunity, I withdraw my complaint in relation
to the First Judicial District Court, First Judicial Court Clerk, and New
Mexico Court of Appeals.
I reiterate that my complaint is imperfectly written. I can see why
there are rules and case law allowing for amendment and I am
I hereby incorporate what I wrote above.
In White by Swafford v. Gerbitz, 892 F.2d 457 (6th Cir. 1989), it
says, “White does not dispute the extent of a judge’s entitlement to
immunity,” which I take as a question that might have been raised,
and as an indication of how to state the question that I am raising.
When case law says, “Judges of courts of limited jurisdiction are
entitled to absolute immunity for their judicial acts unless they act in
clear absence of all jurisdiction,” Ibid., I, as an individual with a
disability, read that in light of the guarantee of equal opportunity for
individuals with disabilities:
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 126 - EQUAL OPPORTUNITY FOR INDIVIDUALS
SUBCHAPTER II - PUBLIC SERVICES
Part A - Prohibition Against Discrimination and Other
Generally, Applicable Provisions
Sec. 12131. Definitions
As used in this subchapter:
(1) Public entity
The term ''public entity'' means -
(A) any State or local government;
(B) any department, agency, special purpose district, or other
instrumentality of a State or States or local government;
(2) Qualified individual with a disability
The term ''qualified individual with a disability'' means an individual
with a disability who, with or without reasonable modifications to
rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of
auxiliary aids and services, meets the essential eligibility requirements
for the receipt of services or the participation in programs or activities
provided by a public entity.
A prohibited act of discrimination is not and cannot be a judicial act.
When I talked about the rules which were not followed, I meant to
complain that with my disability I can’t access justice unless
accommodations to my disability are made. This is similar to the case
of an existing elevator that is out of order. For most people, it’s
inconvenient, but for someone who can’t walk, it’s an impediment to
accessing upper floors of the building. In my case, my mind is not
agile enough to go on without the “elevator” of the rules. I can’t
rethink something or reorganize my presentation in a moment or two
because my disability involves my working memory, which is the
organizing part of my mind, and my processing speed, which is really
no longer speed at all.
One of the things I want adjudicated is my right as a person with a
disability to have the “elevator” of the rules available to me. I am
saying that denying me that right cannot be a judicial act because it is
in conflict with a clearly valid United States law; and I am saying that
denying me that right denies me as a person with a disability.
Another thing I want adjudicated, then, is whether or not Judge Hall
may deny a part of my person, that is, my disability, and still have
jurisdiction over me.
Some questions of fact and law, are 1.) did Judge Hall deny my
disability, 2.) did Judge Hall deny me accommodation of my disability
and/or other rights integral to me as a disabled American, 3.) did
Judge Hall lose jurisdiction over me if he denied my disability, 4.) if
Judge Hall denied me rights integral to me as a disabled American,
and as a result I could not access due process, did he unlawfully deny
me due process, 5.) if Judge Hall denied me rights integral to me as a
disabled American, and as a result I could not get equal protection of
the law, did he unlawfully deny me equal protection of the law, 6.)
did Judge Hall lose jurisdiction over me when he denied me rights
integral to me as a disabled American, 7.) did Judge Hall lose his
immunity, and, 8.) should Judge Hall be liable for damages if one or
more questions of fact are resolved in the affirmative and it is shown
that he damaged me.
There are disputed facts sufficient that this case should not be
In terms of injunctive relief, I do want discrimination against me and
other mentally disabled persons to be stopped.
WHEREFORE I respectfully request relief in an amount to be
determined at trial.
Respectfully submitted, .
Karen Kline, Plaintiff, pro se
Santa Fe, NM 87507
I certify that I mailed a true copy to opposing counsel today, April 26,
|OBJECTION TO MOTION TO DISMISS AND
MEMORANDUM IN SUPPORT
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