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APPELLANT/PETITIONER'S OPENING BRIEF
A-10                 Appellant/Petitioner's Opening Brief and Motion for Leave to Proceed In Forma Pauperis (NON-PLRA)             
1/99
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NOTICE AND INSTRUCTIONS
A-10            Appellant/Petitioner's Opening Brief and Motion for Leave to Proceed In Forma Pauperis (NON-PLRA)               1/99  
Page 3
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________________________________________________

Plaintiff/Petitioner - Appellant,                                  Case No.  04-2182


                
                                                                Appellant/Petitioner's Opening Brief
      and Motion for Leave to
                                                                Proceed Without Prepayment of
                        Costs or Fees
v.                                                                                                           
        
Defendant/Respondent - Appellee.                                                           
____________________________________________________________________________       
A-10             Appellant/Petitioner's Opening Brief and Motion for Leave to Proceed In Forma Pauperis (NON-PLRA)              1/99
Page 4
                        




If you proceed on appeal pro se, the court will accept a properly completed Form A-12 in lieu of a formal
brief. This form is intended to guide you in presenting your appellate issues and arguments to the court. If
you need more space, additional pages may be attached. A short statement of each issue presented for
review should precede your argument. Citations to legal authority may also be included. This brief should
fully set forth all of the arguments that you wish the court to consider in connection with this case.
New issues raised for the first time on appeal generally will not be considered. An appeal is not a retrial but
rather a review of the proceedings in the district court. A copy of the completed form must be served on all
opposing counsel and on all unrepresented parties and a proper certificate of service furnished to this
court. A form certificate is attached.







1.         Statement of the Case. (This should be a brief summary of the proceedings in the district court.)
I filed the Case on March 18, 2004 and paid the filing fee. On April 12, 2004 an Order was mailed to an
address at which I have never lived. Although I supplied the correct information, the Order has not yet
been mailed to me at my address. This is also true of the Minute Order of April 28, 2004, reflected by the
Record Proper: that is, I have not ever received a copy of it, either.

I also was blocked from filing electronically: Given to understand that I needed permission of the Court, I
moved for permission, my motion was denied as moot on May 13, 2004 and Court personnel took that to
mean that I couldn’t file electronically. As a result, I could not withdraw my withdrawal of some of my
complaint when I wanted to after the U.S. Supreme Court handed down
Tennessee v. Lane on May 17,
2004.  Believing Sean Olivas, as an officer of the court, when he wrote that the 11th amendment protected
the state from suit unless they agreed and there was no agreement in this case, I had withdrawn my
complaint in relation to defendants he’d said it affected. But Tennessee v. Lane showed this was not true.
So as soon as I heard
Tennessee v. Lane reported on the evening news on May 17, 2004, I tried to
withdraw my withdrawal. Significantly, I did not have the money for gas to go to the court house and file
because my income arrives on the 27th, and the last ten days of the month I don’t have any money left.

On May 19, 2004, my case was dismissed with prejudice.

I did not succeed in being able to electronically file my withdrawal until May 20, 2004.

I timely filed Notice of Appeal on July 6, 2004 and brought in the completed papers for free service of
process; the clerk said, no, that the papers I needed had to be sent by the Appeals Court. The papers
were notarized, so it is clear that I had them prepared on July 6, 2004.

Thereafter the 10th Circuit said that for me to ask them for free service, I had to first be denied by the
district court, so I filed a motion and the papers; it was denied and this Court sent me this.






2.        Statement of Facts Relevant to the Issues Presented for Review.

The most relevant fact is that state district court has not granted any accommodation of my disability; not
before I filed this case, and not after. Without accommodation I have no due process.

The accommodations I identified prior to filing this case are: being given more time, being allowed to read
my presentation in court, and having the Court follow the rules in the Rules book, or tell me ahead of time
what less obvious rules the Court intends to follow. None of these costs money, and all are encompassed
by the ADA, Title II and
Tennessee v. Lane.

I did not state the accommodations or my complaint clearly, though, and I need to amend.

I realize you frown on extensions of time to complete the Opening Brief. Still, I must explain that due to the
Proposed Order,
Exhibit 1, I was unable because of having lost half my working memory to do my
Opening Brief until after I had objected to the proposed order. I felt I had to object because it threatened
extreme prejudice against me. I can’t do two things at once anymore without getting them confused, so I
could not sandwich the two projects into one time period. Because scanning your document into my
computer was manual, I could do that, and the lady from the brain injury program helped me with the parts
of the financial form that I found confusing.

Please look at my Objections, Exhibit 2, filed September 13, 2004, which show that I can handle
complicated things clearly with sufficient time. I was not granted enlargements of time to do it, though I
moved for them and it took me over a month. A hearing was scheduled for September 20, 2004, as if my
motions were denied and the original time limits applied.

The Objections document relates to the state district court refusing me accommodation at the July 30,
2004 hearing and then ruling “for” me in a most confusing way, that is, dismissing “without” prejudice as I
asked, but at the same time saying I could never file another thing because I was incompetent, which
appears extremely prejudiced when it comes right down to it.

I found this extremely distressing and of an extreme magnitude of danger because I have two foreclosures
which have come about because of the wrongful actions of others and because I was
not allowed accommodation in court so that I could rightfully avoid the foreclosures ever having to have
been filed, as well as the destruction of my credit.






If I don’t ever get accommodation, there is no way I can save my property and protect myself as I should
be able to do via the state court. I also do not have the money to hire a psychiatrist as the Court said I
must if I were to have any chance of ever filing again.

Because the state court judge began the hearing by saying it was “improper” for me to bring this action in
the U.S. Court, I feel that it is even more important than I thought, that this be adjudicated. Because if I
don’t have the right to go to court and have accommodation so that I don’t lose my property, or so that I
can object to the newspaper running a false story about me in which I am made fun of, which I think is bad
to do since it wouldn’t be acceptable for them to run that kind of story about someone with AIDS, I will
lose not only my good reputation, but my property.

It took me a month of concentrated effort to object to the proposed order. I worked on it every day
except for when my tinnitus was so bad that I’d had no sleep and felt as if the only relief would be by
beating my head against the wall until I was unconscious. I called the suicide crisis line. During one period
of days, neighbors removed a tall tree not 25 feet from my back door and I didn’t hear it above the
tinnitus. Each time it was awful coincided with the Court denying accommodation, as for instance by
scheduling the hearing as if there was no reason to wait for my objections.

So, I only just filed my objections, Monday, September 13, 2004. I then opened an envelope I had from
the lawyers for the plaintiffs in the foreclosures and they seemed to be saying that since I couldn’t file
anything again that my property was already foreclosed by default judgment.

So I thought they had been called by opposing counsel in the proposed order case, only I couldn’t be sure
about anything because it takes me so long to process things.

And, when one thing is on my mind, I can’t do another because they get confused and then it’s all a huge
waste.

Meaning, overall, that I would like a month to devote to this, because it is extremely important and with
time I could do a pretty good job. But, if the time given me for my reply brief is enlarged, and I’m not
threatened by state court proceedings, I could do the good job in that Brief.








3. Statement of Issues.

a.        First Issue:
 Whether all state actors are governed by the ADA, Title II, so that I as a mentally
disabled person have the guaranteed right to go to court and have accommodations made to my disability
so that going to court is meaningful and actually grants me due process, or not. And the other side of the
coin, which is that if I cannot sue a judge, then is the state responsible in their place since the ADA, Title II,
says I can sue.

Judge Johnson specifically noted that
Tennessee V. Lane had not yet been dealt with by the 10th Circuit.
Tennessee v. Lane was handed down on May 17, 2004.

Argument and Authorities: I’m going to rely in large part on what I wrote in my Docketing Statement
because of the time problems already described.

The district court should be reversed because: 1.) When I am denied special accommodation of my
disability in state district court I am denied due process; 2.) Without special accommodation of my
disability I will never be able to present any case and I will therefore never have due process nor any
chance of prevailing; 3.) The special accommodations I asked for were reasonable and cost nothing.
As an American with a Disability I am invoking my rights under the ADA, Title II, of which
Tennessee v.
Lane
says, “Title II provides that ‘no qualified individual with a disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.’ 42 U.S.C. §12132. A disabled person is considered ‘qualified’ if he
‘meets the essential eligibility requirements’ for the receipt of the entity’s services or participation in the
entity’s programs, ‘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.’
§12131(2). The ADA’s findings make clear that Congress believed it was attacking ‘discrimination’ in all
areas of public services, as well as the ‘discriminatory effect’ of ‘architectural, transportation, and
communication barriers.’ §§121011(a)(3), (a)(5).”

Tennessee v. Lane is a case about physically disabled persons going to court, my case is about a mentally
disabled person going to court. Clearly if the state court is not immune in the one case, it cannot be immune
in mine.







Tennessee v. Lane also says, “Central to the Act’s primary objective, Congress extended the statute’s
range to reach all government activities, §12132 (Title II), and required ‘reasonable modifications to
[public actors’] rules, policies, or practices,’ §§12131(2)-12132 (Title II). See also §12112(b)(5)
(defining discrimination to include the failure to provide ‘reasonable accommodations’) (Title I).”

Since the United States Supreme Court said that, it seems clear that when I was asking for no more than
accommodations to my disability by means of modifications to public actors’ rules, policies and practices, I
fell well within the protections afforded me by the law.

A judge is a public actor. The law seems to include my right to accommodation by a state court judge, and
if denial hurts me, the law seems to say I can sue for money damages.

If it is the state court, rather than the judge who should be held responsible for the damages, given the way
that one writes, “The Court,” rather than naming the judge, then I can understand that, and the fact is that I
named the First Judicial District Court, only my whole complaint was dismissed.

Further to the issue of whether or not all state actors are governed by the law, which would appear to
include judges,  Justice Ginsburg, with whom Justice Souter and Justice Breyer joined, concurring, wrote in
Tennessee v. Lane, “Legislation calling upon all government actors to respect the dignity of individuals with
disabilities is entirely compatible with our Constitution's commitment to federalism, properly conceived.” I
added the bold.

b.        Second Issue: Whether I should have been granted leave to amend.

Argument and Authorities:  I am entitled to amend pursuant to Rule 15 of the Federal Rules of Civil
Procedure and
McClellon v. Lone Star Gas Co., F.3d 98, 103 (5th Cir. 1995) which says, “Court
should freely grant leave to amend, especially with pro se plaintiff.”

U.S. district court’s denial of leave to amend should be reversed to allow me to amend so that it is clear
that my complaint is about discrimination denying me due process; being denied my right to present my
case, the decision is unlikely to be for that un-presented case. Due process is the issue.








4.         Do you think the district court applied the wrong law? If so, what law do you want applied?

I think the district court applied case law regarding judges from cases that were not ADA, Title II cases, as
opposed to the ADA, Title II law, in and of itself.

I can understand that in many cases judges should not be sued because it would undermine our system of
justice. But if judges refuse to accommodate a disability, then I think the ADA, Title II, is the controlling
law because it says it refers to all actors, and unless it is, I and others like me have no way of protecting
ourselves when at the same time we are more vulnerable than others. All you need to do is to read Exhibit
2 to get a pretty clear picture of my vulnerability and legal needs.

I can understand that the state may want to take responsibility. When I named The First Judicial District, I
believed I was naming a state agency and therefore the state.

But my whole case was dismissed, so what the U.S. District Court appeared to be saying was that I had
no case against anyone for being denied accommodations to ensure I have due process.

That just can’t be right. So I want the ADA, Title II applied so that I can count on due process and being
heard in court.

5.        Did the district court incorrectly decide the facts? If so, what facts?

The Order doesn’t say “Facts.”

In “Background” there are several factual errors, like saying I had a tax attorney when I never did: the man
who told me he was a tax attorney was not one. He was taking advantage of my disability.

The Order says I was “not clear” but then it goes on to deny me leave to amend which appears to deny me
a chance to be clear in the identified areas.

None of the Court’s characterizations of my allegations are correct in terms of what I thought I was
alleging. So I need to amend.

The Court says, “Plaintiff describes herself as disabled, but the Complaint contains no description of a
disability except for loss of ‘two-thirds’ of her ‘working memory’ and ‘processing speed.’ This is an
incorrect “fact” because I alleged that I was disabled under the ADA, and the ADA gives the definition. If
I had been allowed to amend, I could have written that the Department of Vocational Rehabilitation had








tests administered to me, whereby it was shown that I had lost working memory and processing speed. I
don’t believe that it is correct that I’ve lost two-thirds of my working memory. As I understand it, I’ve only
lost about half of my working memory.

6.         Did the district court fail to consider important grounds for relief? If so, what grounds?

Yes.

"Title II, §§12131-12134, prohibits any public entity from discriminating against ‘qualified’ persons with
disabilities in the provision or operation of public services, programs, or activities. The Act defines the term
‘public entity’ to include state and local governments, as well as their agencies and instrumentalities. §12131
(1). A disabled person is considered ‘qualified’ if that person ‘meets the essential eligibility requirements’
for the receipt of the entity’s services or participation in the entity’s programs, ‘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.’ §12131(2). Title II’s enforcement provision
incorporates by reference §505 of the Re-habilitation Act of 1973, 92 Stat. 2982, as added, 29 U. S. C.
§794a, which authorizes private citizens to bring suits for money damages. 42 U. S. C. §12133.”
Tennessee v. Lane, 124 SCt 1978 (2004).

Title II’s enforcement provision incorporating by reference §505 of the Rehabilitation Act of 1973, 92
Stat. 2982, as added, 29 U. S. C. §794a, authorizing private citizens to bring suits for money damages. 42
U. S. C. §12133,
Tennessee v. Lane, 124 SCt 1978 (2004), appears to clearly say I have the right to
bring a suit in this case for money damages, which is the relief I need at this point so as not to lose my
property and be destitute in my old age.

7.         Do you feel that there are any other reasons why the district court's judgment was
wrong? If so, what?

To say anything further, I’d need more time. It’s hard for me to keep parts of things distinct, and under
pressure like now when there’s so little time, I seriously doubt whether I could express other reasons
clearly if I were to attempt to do so.

8.         What action do you want this court to take in your case?







I want the court to affirm that I have a right to accommodations to my mental disability because Congress
has provided this under the ADA, Title II. And I would like the Court to say whether “all actors” includes
judges, or whether the state is to be sued in their place; and finally I want the Court to say I do have the
right to amend my complaint and that leave should be granted.

9.         Do you think the court should hear oral argument in this case? If so, why?

The only reason I’d want oral argument was if I failed to explain to the Court so that it could see my
reasoning and want to decide in my favor. But the fact is that if there were oral arguments, I’d want to be
able to read, and I’d have to read. If I practiced beforehand with my brain injury helper, I could maybe be
able to answer the Court’s questions after I read my presentation.







______________________        ______________________________________
Date                                                Signature





























Affidavit to Accompany Motion for Permission to Appeal in Forma Pauperis
I swear or affirm under penalty of perjury that because of my poverty I am unable to pay the docket fees
of my appeal or to post a bond for them. I believe I am entitled to a different result than that reached in the
district court.
I further swear or affirm under penalty of perjury that the responses which I have made to the questions
and instructions below relating to my ability to pay the fees for my appeal are true.
Instructions. Please complete all questions in this application and then sign it on the last page. If the answer
to any question is "0" or "none," or the question is "not applicable", so indicate by writing "0",  "none",  or
"not applicable (N/A)".  If additional space is needed to answer any question or to explain your answer to
any question, please use and attach a separate sheet of paper identified with your name, the docket
number of your case and the number of the question.
My issues on appeal are:
1. Whether all state actors are governed by the ADA, Title II, so that I as a mentally disabled person have
the guaranteed right to go to court and have accommodations made to my disability so that going to court
is meaningful and actually grants me due process, or not. And the other side of the coin, which is that if I
cannot sue a judge, then is the state responsible in their place since the ADA, Title II, says I can sue.
2. Whether I should have been granted leave to amend.

1.   Are you or your spouse currently employed?        Yes____ No   
  X    

2.   If you or your spouse are currently employed, state the name and address of your employer, the length
of your employment with that employer, and your monthly gross pay.   Gross pay is pay before any taxes
or other deductions are taken. If you have more than one employer, please provide the information
requested below about the other employer(s) on a separate sheet of paper and attach it to this
application.     ___ Not employed______
Ect.



The Exhibits are worth looking at.
FINANCIAL DECLARATION
A-10                Appellant/Petitioner's Opening Brief and Motion for Leave to Proceed In Forma Pauperis (NON-PLRA)             1/99
Page 5



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