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					                                   Cs. No. 08-16136

                    NINTH CIRCUIT U.S. COURT OF APPEALS

Joseph A. Sherman,

      Appellant/Plaintiff

v.

City of Davis,

      Appellee/Defendant

                                       APPEAL

                 From the Eastern District of Ca. Federal District Court



                          APPELLANT'S OPENING BRIEF



                                      Joe Sherman
                                   In Forma Pauperis
                                      PO Box 4595
                                    Davis, Ca. 95617
                                     530-204-9851




                                           1
TABLE OF CONTENTS

TABLE OF AUTHORITIES            2

JURISDICTIONAL STATEMENT        4

STATEMENT OF THE ISSUES         5

STATEMENT OF THE CASE           6

STATEMENT OF THE FACTS          8

SUMMARY OF THE ARGUMENT         9

ARGUMENT                        10

CONCLUSION                      46

CERTIFICATE OF COMPLIANCE       46




TABLE OF AUTHORITIES

42 UCS 1983                     5

28 USC 1331                     5

28 USC 1343                     5

28 USC 1291                     5

Fourth Amendment                6

Fourteenth Amendment            6



                            2
First Amendment                                                    7

FRCP Rule 56(c)                                                    23

Civ. code 51(a),(b)                                                28

28 USC 455(a), (b)                                                 45


Valandingham v. Bojorquez (9th Cir. 1989) 866 F.2d 1135            13

Walker v. City of NY (1992 CA2 NY) 974 F.2d 293                    13

Warren v. City of Carlsbad (9th Cir 1995) 58 F.3d 439, 441         14

Cook v. Sheldon (1994 CA2 NY) 41 F.3d 73                           14

Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 255           20

Gomez v. City of West Chicago (1981) 506 F.Supp. 1241              21

Blankenhorn v. City of Orange (9th cir. 2007)485 F.3d 463, 475     22

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d

      626, 631 (9th Cir. 1987)                                     22

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

      574, 587...(1986)                                            22

Victory Outreach v. Melso (E.D. Pa. 2004) 313 F.Supp.2d 481        23

Dahlberg v. Becker (1984 CA2 NY) 748 F.2d 85 cert.den. 470

      US 1084                                                      24

Saucier v. Katz (2001) 533 US 194                                  24

Choudry v. Jenkins (1977 CA7 Ind.) 559 F.2d 1085, cert.den. 434


                                         3
      US 997                                                         25

Warth v. Seldin (1975) 422 US 490                                    25

Nesmith v. Alford (1963 CA5 Ala) 318 F.2d 110                        26

Board of Airport Comm'rs of the City of LA v. Jews for Jesus, Inc.

       (1987) 482 U.S. 569                                           26

Monroe v. Pape (1961) 365 US 167, 187                                26

Maney v. Radcliffe (DC Wis 1975) 399 F.Supp. 760                     26

Adickes v. SH Kress & Co. (1970) 398 US 144                          26

Valle v. Strengal (CA3 NJ 1949) 176 F.2d 697                         27

Maney v. Radcliffe (DC Wis 1975) 399 F.Supp. 760                     29

People v. Holguin (1956) 302 P.2d 635, 145 C.A.2d 520                34

Liljeberg v. Health Services (1988) 486 U.S. 847                     35

Willowbrook v. Oleck (2000) 110 S.Ct. 1073                           35, 36

Edmonds v. Dillin (1980 ND Ohio) 485 F.Supp. 722                     35

Adickes v. SH Kress & Co. (1970) 398 US 144                          35

Inada v. Sullivan (CA7 Ill) 523 F.2d 485                             36

Rowe v. Ft. Lauderdale (SD Fla 1998) 8F Supp 2d 1369                 36

Waller v. Butkovich (1984 MD NC) 584 F.Supp. 909                     36

Younger v. Harris (US Cal. 1971) 401 US 37                           39

Carpinteria Valley Farms, Ltd. v. Cty of Santa Barbara (CA9 2003)



                                           4
      344 F.3d 822                                                        40

National RR Passenger Corp. v. Morgan (2002) 536 US 101                   40

Maney v. Ratcliff (DC Wis 1975) 399 F.Supp. 760                           43

Cameron v. Johnson (1968) 390 US 611. Koen v. Long (1969 DC

      Mo.) 302 F.Supp. 1383, aff'd per crm (CA8) 428 F.2d 876,

      Cert.den. 401 US 293                                                43



Koen v. Long (1969 DC Mo.) 302 F.Supp. 1383, aff'd per crm (CA8)

      428 F.2d 876, cert den. 401 US 293                                  43

Monroe v. Pape (1961) 365 US 167, 187                                     43




JURISDICTIONAL STATEMENT
Appellant (Plaintiff) filed AMENDED COMPLAINT (COMPLAINT) in the

Eastern District of Ca. Federal District Court pursuant to 42 USC 1983:

      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State or Territory or the District of Columbia,
      subjects, or causes to be subjected, any citizen of the United States or other
      person within the jurisdiction thereof to the deprivation of any rights,
      privileges, or immunities secured by the Constitution and laws, shall be
      liable to the party injured in an action at law, suit in equity, or other proper
      proceeding for redress…




                                           5
alleging acts committed by Defendant violating Plaintiff's U.S. Constitutional

rights, privileges, & immunities. The district court had jurisdiction pursuant to 28

USC 1331 (a federal question), & 28 USC 1343 (conspiracies).

The Ninth Circuit Court has jurisdiction pursuant to 28 USC 1291: APPEAL is

being taken from a final judgment in the Eastern District Court.

E.D. court magistrate judge Brennan's Findings & Recommendations, dated

2/25/2008, recommended granting Appellee's (Defendant's) Motion for Summary

Judgment; Judge Karlton adopted F & R, dismissing suit on 4/25/2008, & denied

MOTION FOR RELIEF FROM JUDGMENT in May 2008. NOTICE OF

APPEAL was filed with the Ninth Circuit Court on 9 May 2008.



STATEMENT OF THE ISSUES
APPEAL issues: COMPLAINT claims of violations of Appellant’s Fourth

Amendment protections against unreasonable search & seizure & arbitrary police

interference; Fourteenth Amend. equal protection violations from harassment,

intimidation, & denial of business establishment services & slander of Appellant’s

name & reputation; First Amend. freedom of speech & freedom of religion

protections. E.D. Court committed Fourteenth Amend. equal protection violations

of discriminatory acts against Appellant by dismissing suit, failing to grant

additional claims through interference & Continuing Violation Doctrine, failing to

provide protection from Injunctive relief.

                                             6
Fourth Amend. of US Const.:

      The right of the people to be secure in their persons, houses, papers, and
      effects, against unreasonable searches and seizures, shall not be violated, and
      no Warrants shall issue, but upon probable cause…

Fourteenth Amend. of US Const.:

      All persons born or naturalized in the United States and subject to the
      jurisdiction thereof, are citizens of the United States and of the State
      wherein they reside. No State shall make or enforce any law which shall
      abridge the privileges or immunities of citizens of the United States; nor
      shall any State deprive any person of life, liberty, or property, without due
      process of law; nor deny to any person within its jurisdiction the equal
      protection of the laws.

First Amend. of US Const.

      Congress shall make no law respecting an establishment of religion, or
      prohibiting the free exercise thereof; or abridging the freedom of speech,
      or of the press; or the right of the people peaceably to assemble, and to
      petition the Government for a redress of grievances.




STATEMENT OF THE CASE

Appellant Sherman, after 6 1/2 years of violations of his rights, having attempted

for years to turn the other cheek, as the Bible says, filed instant sec. 1983

COMPLAINT in E.D. Court in Oct. 2004, cs. CIV S-04-2320 EFB LKK, 5 years

after Yolo court judge Lebov publicly testified in Dept. 5 court hearing that

Sherman should have a restraining order restraining the police & d.a. from

violating his rights. Sherman filed ADDENDUM TO COMPLAINT in July 2005,



                                           7
which was allowed, & then, during excessive delays, he filed additional

MOTION... for further Addendum/Amendment in Jan. 2006, which was denied.

Trial was scheduled for 25 Sept. 2007; Sherman filed objection to delay of almost

a year before trial. Trial was then vacated due to supposed delays in discovery

process; Sherman filed objection once again. During the litigation, from Oct. 2004

(when COMPLAINT was filed) to Oct. 2007, Sherman was unjustly held hostage

in jail for approx. 2 years, as a direct result of Defendant's &/or Yolo d.a.'s

violative acts; therefore Sherman has had to fight almost all of this action from

unjust jail captivity. In Jan. 2008 Sherman filed his approx. 150 pg. PLAINTIFF'S

STATEMENT..., which he filed prematurely, without briefing schedule, at risk of

being struck.

E.D. Federal Court unjustly dismissed Appellant's civil suit on 26 Mar. 2008 by

affirming Magistrate Judge's Findings & Recommendations dated 26 Feb. 2008.

Appellant then filed MOTION FOR RELIEF FROM JUDGMENT, pursuant to

Rule 60, Federal Rules of Civil Proc. On 25 April 2008 Court denied Plaintiff's

MOTION FOR RELIEF..., Appellant filed NOTICE OF PETITION FOR WRIT...

with Ninth Circuit Court on 1 May 2008 & on 6 May 2008.




                                           8
STATEMENT OF THE FACTS

Appellant made multiple motions that were unjustly denied from 2005 – 2008;

E.D. Court has demonstrated prejudice against Appellant consistently. After

lengthy & unjust delays by E.D. Court, as well as extensive unjust jailings that

were within the power of E.D. Court judges to prevent or halt, through Appellant’s

MOTION FOR INTERFERENCE, the prejudice culminated in Appellant’s

COMPLAINT being unjustly dismissed as of May 2008 although it easily met the

requirements for jury trial. According to Magistrate’s argument, it seems the

action was dismissed to punish Appellant for his brief OPPOSITION to Summary

Judgment, & possibly his MOTION FOR SUMMARY JUDGMENT, also brief,

being filed from jail without resources or access to materials & documents.

Nevertheless, upon release, Appellant filed, long before dismissal & ahead of

briefing schedule (prematurely), an approx. 150 pg. PLAINTIFF’S

STATEMENT… on MLK Jr. Day, with official documented evidence &

statements & caselaw. Furthermore, Appellant’s case more than qualifies as

sufficient controversy for jury trial.


SUMMARY OF THE ARGUMENT
I. Magistrate judge's unjust dismissal he acknowledged to be based in part on

Appellant's responses (or lack thereof) during unjust captivity, pro se/low income

status, & corresponding adverse conditions



                                          9
II. Appellant provided statements, AFFIDAVITS, & claims of violative acts

committed against him, including seizures made without arguable probable cause,

harassment, & freedom of speech violations, prima facie claims for jury trial,

despite lies of Appellees

III. Credible threats of kidnap (unreasonable seizure) violated Fourth Amend. &

Fourteenth Amend. rights of Appellant; Appellant has the right to be free from

arbitrary police interference, & the right to be free from discrimination

IV. Magistrate's legal arguments are deficient: Appellant provided mountains of

statements & AFFIDAVITS of years of violative acts committed by the same

Appellees, making a prima facie case for trial;

V. Discrimination, violating Appellant’s equal protection rights is manifest.

AFFIDAVITS & Claim Against the City of Davis [with Addendums], officially

filed, amounts to prejudice;

VI. Younger Rule allows for interference re: Claims still being litigated in Habeas

Petitions based on harassment;

VII. Continuing Violation Doctrine makes Appellant’s claims cognizeable in

instant action; unreasonable seizures & threats of these are far from “discrete acts;”

VIII. Motion for injunctive relief: As recent as Feb. 2008 Appellees committed yet

another violative act against Appellant;




                                           10
IX. Motion for sec. 455 disqualification of judges: E.D. judges Brennan & Karlton

have discriminated against Appellant repeatedly



ARGUMENT

I. E.D. COURT TURNED A 'BLIND EYE' TO APPELLANT'S MANIFEST
HARDSHIPS
Appellant was unjustly placed in the Sacramento jail on 18 April 2007, the same

day Appellee filed Motion for Summary Judgment. At the time, Sherman had a

shortage of friends to call, & didn't have Appellee's (City of Davis') attorney's

address memorized; he filed Notice of Change of Address for all of his other cases

(7 Habeas css. & 2 or more civil actions), & mailed a request for the city of Davis'

attorney's address to the city manager of Davis, but received no response from

them. Jail officers refused access to a phone book. Sherman never received a copy

of the motion for summary judgment, nor did he know there was one when he filed

his OBJECTION TO COURT VACATING TRIAL DATE on 4 June 2007. Upon

receiving a copy of Magistrate's Order to Show Cause, he filed PLAINTIFF'S

RESPONSE...with CERTIFICATION OF SHERMAN OF CURRENT

CIRCUMSTANCES dated 8 July 2007, explaining that he had not received any

Motion for Summary Judgment, nor any response from Appellee (Defendant)

when he wrote to City of Davis manager's office asking for their lawyer's address,

nor had he received any pro per materials from jail officials, despite repeated



                                          11
requests, & that he didn't have the finances to obtain materials. Sherman explained

in his OBJECTION TO DEFENDANT'S MOTION... filed on 17 July 2007, while

in jail, that he was denied any pro per materials. His $25 originally on his account

disappeared quickly with, as magistrate judge acknowledged, his many other active

cases to many of which he had to respond. Magistrate cites Appellees's

(Defendant's) argument that Appellant's various filings in response to these other

cases while he was in jail demonstrates that he could have filed an Opposition in

instant cs.; "Accordingly, plaintiff's claim that he was unable to notify defendant of

his change of address is disingenuous," p. 4, F & R. But such argument only

demonstrates Sherman's point: He had almost no funds, was provided with no pro

per materials, & yet had to fight many cases; it was a miracle he was able to

respond to any of them! & the others were of high priority as well, 2 of them

(Habeas Petitions) directly affecting his unjust captivity at that time. Also, activity

in other css. doesn't magically provide Sherman with City of Davis attorney's

address! Again, he wasn't aware of the Motion for Summary Judgment until he

received court's order in early July! As of mid-July, with still no response to his

requests for Appellee's address, he was able to file an Opposition, OBJECTION

TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT...which court

acknowledged to be his OPPOSITION, but the OPPOSITION was filed without

access to any copies of the files & documents of the action, & with little or no legal



                                          12
resources, & was accordingly only 4 pgs. in length. In these adverse circumstances,

where conditions were clearly beyond Sherman's control, Magistrate judge's

criticism is unconscionable. Magistrate judge claimed Appellant's failure to

respond to the court admonishment (Order to Show Cause) warranted "dismissal

on that basis alone."

Appellant informed court of the hardships & provided the court specific

explanations for the delays & the mysteriously unanswered motion of Appellee!

Court has demonstrated unequivocal prejudice against Appellant by falsely

trivializing the manifest adverse jail conditions & obvious civil rights violations

that were occurring against by its decision to dismiss!


II. APPELLANT MET HIS BURDEN IN OPPOSING APPELLEE'S MOTION
FOR SUMMARY JUDGMENT
The requirements of Valandingham v. Bojorquez (9th Cir. 1989) 866 F.2d 1135,

1142 of bona fide issues for trail with evidence have been more than met from the

following documents filed with E.D. Court before Magistrate's Findings &

Recommendation was filed:

1. COMPLAINT; 2. ADDENDUM TO COMPLAINT; 3. OBJECTION (construed

as OPPOSITION) (23 July 2007); 4. ...MOTION FOR TEMPORARY

RESTRAINING ORDER (12 Dec. 2007); 5. ADDENDUM TO MOTION FOR

TRO...(27 Jan. 2007); 6. ADDITIONAL ADDENDUM TO MOTION FOR TRO

(8 Mar. 2007); 7. PLAINTIFF'S PRETRIAL STATEMENT OF UNDISPUTED

                                          13
FACTS (Jan. 2008), (with: Claim Against City of Davis [&43 Addendums] &

AFFIDAVIT/PRESS RELEASE).

These documents include AFFIDAVITS of testimony to the facts that are available

to Court & part of instant action, & are further proof that there was no probable

cause for the unreasonable seizures, & that there is evidence & facts so that,

pursuant to Walker v. City of NY (1992 CA2 NY) 974 F.2d 293, it is more than

reasonably conceivable that Plaintiff can establish a set of facts at trial entitling

him to relief. In his OBJECTION... (OPPOSITION) filed on 17 July, Appellant

provided, under penalty of perjury, statements of the violative acts, as well as the

legal arguments demonstrating there was no probable cause in any of Appellee's

violative acts. If reasonable minds could differ on material facts at issue, summary

judgment is inappropriate, Warren v. City of Carlsbad (9th Cir 1995) 58 F.3d 439,

441. Reasonable minds could not differ; the scandal is manifest!

a. Nugget Market

Sherman made claim of unjust seizure & injuries, & there is no testimony or

evidence of a lawful arrest despite the results of the kangaroo trial committed by

Davis police officers Rifredi & Irwin at Nugget Market on 16 June 2004.

COMPLAINT, p. 3, Sherman states there was no evidence, nor was there claim,

that he committed a crime. Unjust seizure was pursuant to "...invidious

discrimination" of the Davis police, p. 3. Arrest was "violation of Fourth



                                           14
Amendment unreasonable search & seizure prohibition, & [is] actionable under 42

USC 1983, Cook v. Sheldon (1994 CA2 NY) 41 F.3d 73..." Sherman states that

Rifredi "falsely alleging I was resisting arrest, slamming me to the sidewalk,

bruising my hip, my shoulder was bruised & scraped, & my forehead was scraped

as well. Both officers committed perjury in court trial..." These are more than

conclusory allegations, they are specific claims of violative acts. Magistrate Judge,

before filing F & R, also had as evidence, copies of Appellant's Claim Against the

City of Davis [with 43 Addendums] filed with PLAINTIFF'S PRETRIAL

STATEMENT OF UNDISPUTED FACTS... which Appellant filed with the E.D.

Court on Martin Luther King Jr. Day (prematurely filed to prompt the court to

move forward with proceedings). In Addendum Thirty-Six to Claim Against the

city of Davis (filed on 30 June, 2004), Sherman states, "I was peacefully

evangelizing in front of the store, they took me against my will to the Yolo County

jail because the store manager wanted them to. I hadn't broken any laws, I had the

right to be there....Officer Irwin had trouble with her handcuffs while illegally

oppressing me, suddenly both officers threw me to the ground, which consisted of

cement, officer Rifredi ground my face into the cement, causing abrasions in two

places to my face, I also received a bruise on my hip & a scrape on my shoulder..."

b. Mansion Square




                                          15
Appellant has provided Court with specific claims & evidence of unreasonable

seizure committed by officers Gutierrez & Irwin on 15 Jan. 2004 at Mansion

Square. Appellant states in COMPLAINT, p.2, that he was making calls on his

"mobile phone in the patio area (open to the public)," & that arrest was illegal,

based on personal preference of a local business owner. Sherman claims again that

it was invidious discrimination of the police, p.2. Sherman was acquitted of

wrongdoing in jury trial (m.o., cs. 03-7477, see PLAINTIFF'S PRETRAIL

STATEMENT...). Appellant additionally filed Addendum Thirty to Claim Against

City of Davis with Court (Addendum filed on 22 Jan. 2004) as evidence with

PLAINTIFF'S PRETRIAL STATEMENT..., stating: "Officers Irwin & Gutierrez

committed false arrest at Mansion Square...I was at a table in the court yard, an

area open to the public when the officers arrived & said I had to leave or I would

be arrested. The owner (or manager) of American Graffiti Tattoos called the police

for no more than the fact that I had been arrested there before & he didn't want me

there." As additional evidence, in a previous incident at Mansion Square, in

approx. Aug. 2003, Appellant was "making phone calls from a table in the

courtyard of Mansion Square; one of the businesses located in Mansion Square

called the police; police threatened to arrest Sherman if he refused to leave. He

refused to leave & was unreasonably seized. There was no probable cause, police

acted on business operator's personal preference that Plaintiff be excluded from the



                                          16
property. Charges were never filed," p. 5, ...ADDITIONAL ADDENDUM TO

MOTION FOR TRO. Magistrate Judge had a copy of Addendum Twenty-Two to

Claim Against the City of Davis, filed on 29 Aug. 2003 (filed with E.D. Court as

part of PLAINTIFF'S PRETRIAL STATEMENT... in Jan. 2008), in which

Appellant states: "Officer Doroshov & officer Irwin committed false arrest against

me...at Mansion Square. I was in the courtyard, an area open to the public, I was

making phone calls to brokers. Doroshov said one of the business owners didn't

want me there...Doroshov then said he talked to the owner of Mansion Square &

said the owner didn't want me there. He said if I didn't leave, he'd arrest me. This is

an area open to the public! You can't arrest someone for trespass in an area open to

the public! I hadn't broken any law & I wasn't breaking any law. Officer

Doroshov...said, 'I'm f--'in glad I arrested you! You're nothing! Nobody cares about

you or your rights!' He repeatedly spoke the 'f' word. This makes a minimum of 18

crimes of false arrest & false charges committed by the Davis police, plus 17 more

crimes of threat of false arrest!" Magistrate & E.D. Court can’t assume it was a

business area that wasn’t open to the public when Sherman testified it was open to

the public, & testimony demonstrates it is a shopping center (tattoo parlor, etc.); a

prima facie public forum.

c. El Cajon

Sherman also made sufficient argument & presented factual & probative



                                          17
evidence re: Unreasonable seizure that occurred at 204 El Cajon on 2 Sept. 2003;

Sherman statement in COMPLAINT, p. 2, demonstrates he had more than enough

to establish residence: Possession (he was inside the home), a signed lease, a check

stub for first mos. rent & deposit. He claims officer Beasley & another officer

kidnapped him & took him to jail (unreasonable seizure), & threatened

unreasonable seizure if he returned to the residence. He also asserts there was no

charge filed for lack of evidence, p. 3. In his OBJECTION...(OPPOSITION),

Sherman elaborates re: All violative acts of COMPLAINT that Defendant was

"aware that there was no grounds for citizen or police arrest, nevertheless not only

reduced the violative acts to 'signing on the dotted line' for citizen [c.a., or citizen's

arrest], but coerced & duped citizens into calling them, creating a custom..." This is

precisely what occurred in this instance: Westbrook (complaining party, who was

was no doubt fully aware of their custom) readily signed the c.a. form allowing

officers to claim it was someone else making the arrest. Sherman further

elaborates in ADDITIONAL ADDENDUM... (AFFIDAVIT) that he agreed to

write up a lease agreement, & both parties signed it; Sherman states he tendered a

check to the landlord (Westbrook), who accepted it. "Both parties agreed to meet

subsequently so that Plaintiff could move in on that same day, as contract

specified. When Plaintiff arrived, landlord wasn't there yet, but another roommate

was, & allowed Plaintiff to move his possessions into the residence...When



                                            18
landlord arrived, he said he had changed his mind...& Plaintiff had to leave.

Plaintiff refused; landlord called the police. Plaintiff...showed officers his copy of

the lease agreement, his check stub, & landlord's signature on the written lease

agreement; signature additionally matched that of landlord's driver's lic. Landlord,

knowing of Davis police conspiracy, knew he could depend on them to force

Plaintiff out of the residence; he lied & said the signature was forged, relying on

the police' corruption, which by then was a force of custom re: Plaintiff to unjustly

seize Plaintiff. Without probable cause.. officer... unreasonably seized Plaintiff."

In his Addendum Twenty-Three to Claim Against City of Davis (filed on 3 Sept.

2003), which had been filed with E.D. Court as part of evidence of PLAINTIFF'S

PRETRIAL STATEMENT..., Sherman states "(the lease stipulated a room in the

residence...); possession & signed lease, it doesn't get any better than this as far as

proof of being a lawful resident & right of possession...Although Mr. Westbrook

lied & said the document was forged, my possession of the property, with my

personal possessions moved in, & my testimony of the lease agreement was

sufficient to establish residency according to Ca. statutes that state an oral lease is

sufficient. Moreover, I had a written lease! Mark my words, there is no law &

order in this community. This city government is corrupt in every sense of the

word! You so-called leaders are cowards, too afraid & too lazy to uphold

justice..."



                                           19
d. Belfrey

In ADDENDUM TO COMPLAINT, p.1, Sherman states that on approx. 14 Nov.

2004 officer Dunn & 2 other officers kidnapped (unreasonably seized) Plaintiff

from the Belfrey Ministry. He states he was "attending a religious prayer & soup

meeting by invitation, but nevertheless the meeting was open to the public, being

advertised on the internet & other places as being a prayer group for students,

grads, & young adults in Davis. One of the group officers confirmed the meeting

is open to all." The leader told Sherman he had to leave & he refused (p. 2). The

Belfrey pastor called the police, "searched Sherman without probable cause, &

although they were fully informed that Sherman had done no more than

come to participate in a meeting open to the public, they took him forceably,

instilling fear, to the Yolo County jail," COMPLAINT; Sherman further states that

the charges were dropped for lack of evidence. As further proof of Glasgow's

perjured "board meeting" statement, Sherman testified in his Addendum Forty to

Claim... (filed 16 Dec. 2004), filed with Court in PLAINTIFF'S PRETRIAL

STATEMENT...: "I attended the soup & prayer meeting advertised as open to

students, grad students, & young adults in Davis, also having been invited there the

previous Sunday @ Davis Lutheran Church by Neil, a worship leader [at the

church]. They were discriminating against me, telling me they didn't want me

there, but I was a perfect gentleman, I had done nothing wrong, nor did they claim



                                         20
I did anything wrong to the officers." Sherman reiterates: "Officer Glasgow

arrested me 'no questions asked.' ..Dunn arrived subsequently & eagerly

participated..." Sherman undoubtedly has demonstrated a set of facts entitling him

to relief! Magistrate claims that the evidence did not present a sufficient

disagreement to require submission to a jury trial (Anderson v. Liberty Lobby, Inc.

(1986) 477 US 242, 251-52), & therefore E.D. Court dismissed Appellant's suit.

But "Under the [FRCP]...it is well established that, on a motion to dismiss, a

complaint must be construed in a light most favorable to the plaintiff, the

allegations thereof being taken as true; if it appears reasonably conceivable that at

a trial the plaintiff can establish a set of facts entitling him to some relief, the

complaint should not be dismissed...complaint should not be dismissed unless it

appears beyond doubt that plaintiffs can prove no set of facts in support of their

claim that would entitle them to their requested relief..." Gomez v. city of West

Chicago (1981) 506 F.Supp. 1241. Appellant provided prima facie cases of

unreasonable seizures & threats of unreasonable seizures!

As demonstrated above, Appellant had provided E.D. Court with evidence in the

form of claims with specific facts made in his COMPLAINT, AFFIDAVIT

testimony from ADDITIONAL ADDENDUM..., & further very specific

statements that were officially documented in his Claim Against the City of Davis

[& Addendums], copies of these filed with the E.D. Court as part of his



                                            21
PLAINTIFF'S PRETRIAL STATEMENT... Appellant provided more than

sufficient material facts from these documents & the others listed above. More than

"reasonably conceivable," it is undeniable that Appellant can establish a set of facts

at trial entitling him to relief. Magistrate claims that "Plaintiff bears the burden

under [sec.] 1983 to establish: (1) a constitutional violation (2) that is attributable

to the municipality...He...has not met his burden in opposing this motion. He has

not pointed to specific facts or probative evidence demonstrating a genuine issue of

material fact as to either element," p. 9, F & R. Appellant demonstrates from the

above evidence that he has demonstrated prima facie violative acts of unreasonable

seizures committed by the Davis police, & the City of Davis, being the chief policy

makers & supervisors are unequivocally liable, being fully informed, yet failed to

train, reprove, educate, or terminate or arrest their employees, or remedy their

violative acts. Blankenhorn v. City of Orange (9th cir. 2007)485 F.3d 463, 475,

"We may not affirm a grant of summary judgment if there is any genuine issue of

material fact or the district court incorrectly applied the substantive law...Because

'[c]redibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge,' when

reviewing a grant of summary judgment, '[t]he evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.' Anderson v.

Liberty Lobby, Inc. (1986) 477 U.S. 242, 255. '[I]f a rational trier of fact might



                                           22
resolve the issue in favor of the nonmoving party, summary judgment must be

denied.' T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631

(9th Cir. 1987) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587...(1986))." The issues of this suit belong before a jury!

Furthermore, Appellee's attorney, with many advantages that haven't been readily

available or accessible to Appellant, such as nearly unlimited resources & a

municipality with millions of dollars of surplus City of Davis budget funds for

expenses, & furthermore also being free from unjust jail captivity (as opposed to

Appellant) to have access to such resources, filed as part of their motion excessive

affidavits of police testimony, giving the appearance of an ominous argument on

their behalf; a court cannot consider the credibility or weight of the evidence in

deciding a motion for summary judgment, even if the quantity of the moving

party's evidence far outweighs that of the opponent, Victory Outreach v. Melso

(E.D. Pa. 2004) 313 F.Supp.2d 481. & while Sherman's 4 pg. OPPOSITION, filed

from jail, was sparse, it was supplemented upon Sherman's release when he

completed & filed the nearly 150 pg. PLAINTIFF'S PRETRIAL STATEMENT...

which he filed with E.D. Court early, on Martin Luther King Jr. Day, although

briefing schedule had not yet been issued by court. It contains an additional 100

pgs. of court-documented evidence, AFFIDAVIT evidence, & other officially

documented evidence, all of which is referenced within the document itself &



                                          23
which contains additional facts & legal argument with caselaw. The ...PRETRIAL

STATEMENT... contains Undisputed & Disputed Factual Issues for each of the

violative acts of unreasonable seizures as well. FRCP Rule 56(c) makes it clear

that summary judgment decision must be based on "...the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits..;"

all the evidence made available to court must be considered. Magistrate

acknowledges this Rule 56(c) prima facie duty when he states: "Having considered

the record in its entirety..." but then despite the facts, recommends for dismissal; if

the record was truly considered in its entirety, he would not have recommended

dismissal. Rather, it seems appellant is being punished for filing a brief

OPPOSITION under adverse circumstances. Considering that upon release from

unjust jail captivity in Oct. 2007, he was faced with obtaining employment,

fighting 7 Habeas actions & several 1983 suits, finding a place to live, & other

adverse conditions, he feels his creating & filing of the lengthy ...PRETRIAL

STATEMENT... ahead of schedule was to his credit. Under manifestly adverse

conditions of unjust jailing, low income, unemployment, & lack of residence,

Appellant, acting as pro se, more than adequately met his obligations for trial, & it

is clear he has a case for trial. Court is bound to construe the complaint favorably

to the pleader, Dahlberg v. Becker (1984 CA2 NY) 748 F.2d 85 cert.den. 470 US

1084; re: Summary judgment motions, facts alleged are to be taken in the light



                                          24
most favorable to the injured party, Saucier v. Katz (2001) 533 US 194. There is

more than enough evidence demonstrating issues of material facts & issues for

trial. Furthermore, Appellant's COMPLAINT involves claims of violations of

fundamental freedoms: 1)Freedom from unreasonable seizure & from arbitrary

interference from police & government officials of the Fourth Amendment;

2)freedom from harassment & discrimination by government officials (Fourteenth

Amendment equal protection); & 3)freedom of speech & freedom of assembly

(First Amendment). Courts usually don't grant summary judgment to defendant in

actions involving violations of fundamental freedoms, Choudry v. Jenkins (1977

CA7 Ind.) 559 F.2d 1085, cert.den. 434 US 997.

Dismissal of Appellant's civil suit was prejudicial against Appellant. Appellant

requests Ninth Circuit Court reinstate his sec. 1983 suit so that he can go to trial

against Appellees.



III. CREDIBLE THREATS OF KIDNAP

Fourth Amendment violations asserted: On p. 4 of his COMPLAINT, Appellant

states: "On the dates furnished below @ the locations furnished below,

corresponding police officers, or other personnel employed by Defendants, as

furnished below, unlawfully violated Plaintiff's rights by committing threat of

unlawful arrest of Plaintiff...without a warrant, together with threat of unlawful



                                          25
imprisonment." On p. 9, Plaintiff reiterates that the claims are pursuant to the

Fourth Amend., Fourteenth Amend. & other statutes. Fourth Amendment

protection against unreasonable search & seizure is violated by credible threat of

unreasonable seizure, as well as First Amendment freedom of speech & assembly:

Warth v. Seldin (1975) 422 US 490, threatened or actual injury to citizen by

officer, officer is liable. Nesmith v. Alford (1963 CA5 Ala) 318 F.2d 110, officers

arrested plaintiffs discriminatorily in restaurant who weren't disturbing the peace:

"Liberty would be at an end" if police could commit such acts; citizens have the

right to be free from actual or threatened discriminatory arrest by police; acts also

violated free speech/association. Conduct of plaintiffs was considered offensive &

provocative to socially settled customs, but was protected. Board of Airport

Comm'rs of the City of LA v. Jews for Jesus, Inc. (1987) 482 U.S. 569, threat of

unreasonable seizure by police in a First Amendment protected forum is actionable

pursuant to sec. 1983. Monroe v. Pape (1961) 365 US 167, 187, freedom to

assemble & associate in a public restaurant without threat of arrest is

constitutionally protected. Maney v. Radcliffe (DC Wis 1975) 399 F.Supp. 760, "A

core concept of the Fourth Amendment is to be free from arbitrary & unreasonable

interference by police." Fourteenth Amendment violations of equal protection

asserted: Sherman asserted harassment & discrimination committed against him by

Appellee (see p. 2, 3, 5, & 9 of COMPLAINT, p. 3 of ADDENDUM TO



                                          26
COMPLAINT, Addendum Thirty-Eight to Claim Against City of Davis, &

Addendum Twenty-five of Claim Against City of Davis. Adickes v. SH Kress &

Co. (1970) 398 US 144, police who develop a custom of discriminating against

plaintiff in public places & business establishments, subjecting plaintiff to false

arrests & threats of false arrests for purpose of harassing & punishing, acts violate

citizen's equal protection rights. Valle v. Strengal (CA3 NJ 1949) 176 F.2d 697,

plaintiff denied equal protection rights by ejection from business & denied

services; sec. 1983 prohibits denial of rights, privileges, & immunities secured by

the Const. & the laws.

a. Community Park

In ADDITIONAL ADDENDUM & MOTION FOR TRO, Appellant provides

AFFIDAVIT testimony of the deprivation of his rights in Community Park. He

was deprived of use of a public electrical outlet, & threatened with unjust seizure if

he didn't leave. As stated, the area was open to the public, & there was no

accusation against him of any wrongdoing; prima facie police harassment; the facts

provided easily establish failure of police to obtain probable cause. In Appellant's

Addendum Thirty-Eight to Claim Against the City of Davis (filed on 17 Aug.

2004), filed with Court with his PLAINTIFF'S PRETRIAL

STATEMENT...Appellant states: "Davis police officers Glasgow & Briesenick

harassed me...@ Community Park...When I arrived to the area, there were teens



                                          27
from the youth program sitting at some of the picnic tables, having just come from

swimming...I greeted the youths & asked them if they had a good swim...Within a

few minutes the leaders had the kids go into a building. Suddenly the police

[arrived], & officer Glasgow asked me why I had been talking to the kids. I said

because I felt like it. He said talking to the kids could be considered

harassing & annoying them, I rebuked him. They at first said I had to leave; I

refused, then they said the power outlets aren't available to the public, but all the

other citizens get to use them...He then...shut off the power."

b. Chamonix Cafe

In COMPLAINT, p. 5, 6, Appellant asserts threat of violation of his Fourth

Amend. rights from threat of seizure; accusation was prima facie

discrimination: He had to leave because he was using his mobile phone, although

others could use their phones in the coffee house, further violating Civ. code

51(a),(b):

      (a) This section shall be known, and may be cited, as the Unruh
      Civil Rights Act.
      (b) All persons within the jurisdiction of this state are free and
      equal, and no matter what their sex, race, color, religion,
      ancestry, national origin, disability, medical condition, marital
      status, or sexual orientation are entitled to the full and equal
      accommodations, advantages, facilities, privileges, or services in
      all business establishments of every kind whatsoever.


The facts are sufficient to establish that there was no probable cause.



                                           28
Sherman also filed with Court on MLK Jr. Day PLAINTIFF'S PRETRIAL

STATEMENT..with Addendum Twenty-six to Claim Against City of Davis (filed

29 Oct. 2003); Sherman states: "Officer Gomez committed [threat of] false

arrest...@ the coffee shop in Anderson Plaza. There was no probable cause, nor

did the officer claim there was. I was making calls on my mobile phone; I have

gone to this coffee shop before, people regularly make calls on their mobile phones

in this coffee shop, but the owner...in a condescending manner wanted me to make

calls outside. When I said, "no," she said she was the owner & I had to leave...I

said if she wanted to rule out mobile phones in her business (shear folly for a

coffee shop), to do it legally she would have to make it a universal rule for all...it

would have to be conspicuously posted. She then said she had no intention

of..[making a rule against] our mobile phones, she wanted me to leave because I

was on private

property & she didn't want me there..."

c. 717 Adeline Pl.

Officers Dunn, Edens, & another officer attempted to coerce Appellant's landlord

to false arrest Sherman, telling him that they would seize Sherman if he would sign

a citizen's arrest form, "they told him to, & tried to convince him to, sign for

citizen's arrest for trespass.," COMPLAINT, P. 4. The context was an illegal lock-

out by Sherman's landlord; they "examined my sublease & determined...that I had



                                           29
the legal right to be there." Maney v. Radcliffe (DC Wis 1975) 399 F.Supp. 760,

"A core concept of the Fourth Amendment is to be free from arbitrary &

unreasonable interference by police." Sherman's Addendum Thirty-Two to Claim

Against City of Davis...(filed on 6 April 2004), filed with Court with

PLAINTIFF'S PRETRIAL STATEMENT..., Sherman states: "When these officers

arrived, I established with a copy of my lease that I had a valid lease & had the

right to entry of the property, this they acknowledged & explained to Mr. Nguyen.

Mr. Nguyen then told them he didn't like me & didn't want me living here. They

said...he could request a citizen's arrest for trespassing & they would arrest me...I

repeatedly rebuked them..." The harassment & very real & credible attempt to

unjustly seize Sherman violated his Fourth Amend. rights.

d. In-n-Out Burger

Sherman states on p. 4 of COMPLAINT, "Davis police officers committed false

arrest/kidnap...@ In-n-Out Burger; I was waiting to meet with a Real Estate

broker in compliance with all laws;" In Addendum Twenty-five of Claim

Against City of Davis (filed 16 Oct. 2003) (see PLAINTIFF'S PRETRIAL...)

Appellant states: "Officers...threatened me with false arrest if I didn't leave

In-n-Out Burger because 'the manager wants you to.' They made it clear

I would be arrested if I didn't leave right away. I was waiting for a broker,

I had done nothing wrong; your officers are guilty of multiple counts of



                                          30
harassment!"

e. City employees

In COMPLAINT, p. 5, Sherman states: "City of Davis...employees harassed

me & committed slander against me in front of kids, falsely stating that

the employees had arrested me at that location previously & attempting to

order me to leave under threat of citizen's arrest, for doing no more than

greeting the kids; the area involved was open to the public..." In Addendum

Thirty-Seven... (filed on 15 July 2004), Sherman states that the leader was

"a liar & was committing slander."

f. Amtrak station

Sherman claimed in COMPLAINT, p. 4, that officer Holt "committed threat of

false arrest/kidnap @ Amtrak train depot...I was threatened with police action

by clerk of depot for doing no more than using a public restroom; officer

threatened arrest if I returned to depot ever in future." In his Addendum

Twenty-nine to Claim Against City of Davis (filed 6 Jan. 2004), Sherman

states, "I had gone to the station to use the bathroom...the station was open for

business, there were customers in the facility...[the clerk said] if I didn't leave now

he was going to call the police...a clear violation of freedom of assembly...You

don't need to be a passenger to visit any train station or the local airport to watch

the trains & planes come & go."



                                          31
g. Insurance agency

On p. 2 of ADDENDUM TO COMPLAINT, Sherman states "...plaintiff,

while job searching, went to an insurance co. office on G St. in Davis owned

by an agent named Copeland. After speaking to Copeland re: A position,

Copeland requested Sherman submit a resume & they could subsequently

have an interview. The following day...a police officer...approached

Sherman... & told him that if he ever went to Copeland's office at all again

he would be arrested...it constitutes theat of kidnap & harassment &

discrimination." In Addendum Forty-one to Claim Against City of Davis (filed

approx. 21 Jan. 2005), filed with Court in PLAINTIFF'S PRETRIAL

STATEMENT..., Appellant states: "Officer Gomez threatened me with kidnap...in

downtown Davis...[he] said if I go back to her office I will be arrested. Her office

is open to the public, & I hadn't done anything wrong; he said she didn't like my

aggressiveness (has nothing to do with right & wrong), & made his threat against

me based on that...threatening kidnap, rather than informing her it wasn't a police

matter, is illegal intimidation..."`

h. Custom of banning

On p. 6 of COMPLAINT, Sherman testifies of Appellee's systematic custom of

banning him from public places: "Furthermore. regarding each of the locations

where police threatened me with kidnap (under corrupt pretenses...), as well as



                                         32
most locations where they actually did kidnap me (under corrupt pretenses of

arrest), police fraudulently attempted to assert to Plaintiff that based on the incident

in & of itself if I ever returned to that business/location I would be subject to arrest

for no more than being on the premises, effectively banning me from these

locations...indefinitely & forever...this crooked threat of ...action was fraudulently

represented to the owners/managers of these businesses, deceiving them into

believing they had rights to discriminate & ban people under color of law..."

Examples of this are the Amtrak depot, Mansion Square, & Copeland's office.

Sherman provided specific facts & probative evidence for each of these claims, &

supplemented these claims & assertions with the additional evidence provided in

the PLAINTIFF'S PRETRIAL STATEMENT... which he filed prematurely on

MLK Jr. Day in Jan. 2008.



IV. MAGISTRATE'S LEGAL ARGUMENTS ARE DEFICIENT

Any legal argument for dismissal based on the possibility of existence of arguable

probable cause is unsupportable in the face of the evidence of unequivocal

violative acts Appellant furnished to E.D. court:

1)Sherman filed with E.D. Court: MOTION FOR AMENDMENT...in Jan. 2006

with names, dates, locations, re: 29 violative acts of Appellees over a period of 4

years, 5-10 violative acts/yr., including 12 acts of unreasonable



                                           33
seizures/kidnappings, where charges were dropped, cases dismissed, acquitted

through jury trial, etc.;

2)Appellant filed PLAINTIFF'S SEPARATE PRETRIAL STATEMENT... in Jan.

2008 containing AFFIDAVIT & PRESS RELEASE dated 21 April 2004 with

AFFIDAVIT testimony of more than 40 violative acts of appellee against him from

1999 through April 2004;

3)Appellant filed testimony of a Yolo judge who rebuked Appellees & offered

Appellant a restraining order restraining them from him in Dec. 1999;

4)Appellant filed copies of his Claim Against the City of Davis [& 43 Addendums]

with E.D. Court, all officially filed with city manager's office of City of Davis over

a period of 5 years, with contemporary testimonies of the facts of every violative

act in Jan. 2008 (included with PLAINTIFF'S SEPARATE PRETRIAL...).

All of these documents were before E.D. Court at least a month before Magistrate's

F & R for dismissal, & at least 3 mos. before Judge's dismissal. The proof of the

years of harassment & hate crimes committed by Appellee against Appellant is

undeniable. Ca. standard: People v. Holguin (1956) 302 P.2d 635, 145 C.A.2d 520,

"Defendant makes a prima facie case of unlawful arrest when he establishes that

the arrest was made without a warrant, & the burden of proof then rests on the

prosecution to show proper justification." These represent prima facie cases of

unreasonable seizure, & prosecutor failed to them justify them! Appellant's court



                                          34
vindications speak for themselves, & easily met the burden of demonstrating

constitutional violations committed by Appellees. Magistrate's attempt to indulge

Appellees' argument for arguable probable cause with a rare case that doesn’t

apply to shopping centers, & to do so in the context of evidence of years of

obvious unreasonable seizures of Appellant by Appellees is dishonest, & mean-

spirited prejudice on the part of the E.D. Court. Appellee made a motion for

judicial notice of various documents: Liljeberg v. Health Services (1988) 486 U.S.

847, if a judge is showing prejudice against the plaintiff, he should recuse himself.

If there was ever manifest injustice, it was in dismissing this civil action. Sherman

met all of his legal obligations in this civil suit.


V. DISCRIMINATION OF APPELLEES MANIFEST
Appellant repeatedly claimed discrimination against him due to religion &

personal vendetta of police. Nevertheless, Willowbrook v. Oleck (2000) 110

S.Ct. 1073 makes it clear that discrimination can be against "a class of one,"

be for an irrational basis. Appellant claimed discrimination against him for

religious basis, p. 3 of COMPLAINT. On p. 2, Sherman also claims personal

preference of business owner, being discrimination based on status or income.

Claims of discrimination/conspiracy are a violation of Appellant's Fourteenth

Amendment rights of equal protection (see COMPLAINT, P. 9), & are actionable

in sec. 1983 civil suits: Edmonds v. Dillin (1980 ND Ohio) 485 F.Supp. 722,



                                            35
municipal discrimination based on low income, liability; Adickes v. SH Kress &

Co. (1970) 398 US 144, police who develop a custom of discriminating against

plaintiff in public places & business establishments, subjecting plaintiff to false

arrests & threats of false arrests for purpose of harassing & punishing, acts violate

citizen's equal protection rights. The discrimination against Appellant is

undeniable, & the basis, personal vendetta (or preference of business owners),

religion, & irrational basis, was stated in COMPLAINT. The discrimination is

further undeniable due to the prolific violative acts committed against Sherman;

Willowbrook makes it clear that discrimination is self-manifesting; that they are

discriminating is controlling, not properly naming the motive; Inada v. Sullivan

(CA7 Ill) 523 F.2d 485, something as subtle as personal dislike, prejudice toward

citizen as motive for unreasonable seizure is actionable. Rowe v. Ft. Lauderdale

(SD Fla 1998) 8F Supp 2d 1369, the linchpin of the conspiracy is the

agreement between parties; complaint must allege an agreement, and provide

an objective of the conspiracy. Plaintiff must also prove conspirators committed

an actionable wrong. Waller v. Butkovich (1984 MD NC) 584 F.Supp. 909,

single overt act by just one of the co-conspirators is enough to sustain a conspiracy

claim even on the merits. Plaintiff is not req'd. to allege exactly when, where, and

with what words agreement was formed. Conspiracies are by their very nature

secretive, victims are unlikely to have access to such facts before bringing suit.



                                          36
Appellant argued & testified in AFFIDAVIT (ADDITIONAL ADDENDUM TO

MOTION FOR TRO), asserting personal vendetta & whitewashing of their past

crimes against Sherman as motives for discrimination. In Addendum Thirty-Three

to Claim...(filed 6 May 2004), filed with E.D. Court with PLAINTIFF'S

PRETRIAL STATEMENT... testifies of the custom & coercing of citizens by the

police & American Medical Response, abusing their sirens to alarm citizens &

instill fear. He states that it was causing people to try to run him over with their

cars (Addendum Thirty-Two...). Addendum Four...(filed 10 April 2002),

filed with court with PLAINTIFF'S PRETRIAL STATEMENT..., demonstrates

how Davis police duped Plaintiff's neighbors (the Workman's) on Drake Dr. to

commit 4 false arrests of him in Fall 1999; they "slandered my name to

Workman & participated in & knowingly committed false arrests." Workman

"taking police' 'cue' lied & got an unjust restraining order against me

(PT99-1513), & made a total of 4 false arrests of me; 2 were dismissed...

[lack of evidence]."

MARK:

Plaintiff asserted 25 violative acts of kidnap & 17 threats of kidnap committed by

Defendants against him since the end of 1999; COMPLAINT, p.6; Appellees

haven't tried to deny any of these assertions;

MARK:



                                           37
Sherman has asserted 17 kidnappings/false arrests committed against him by

Appellees, with Yolo cs. #'s, that have occurred before those of this action in

AFFIDAVIT & PRESS RELEASE (PLAINTIFF'S PRETRIAL STATEMENT...;

Appellees haven't denied any of them;

MARK:

Sherman has asserted at least 10 threats of kidnap/false arrest, plus acts of slander

& fraud committed against him by defendant, that occurred before the violative

acts of instant action in AFFIDAVIT...; Appellees haven't denied any of them.


VI. REINSTATEMENT OF CLAIMS PURSUANT TO YOUNGER RULE
E.D. Court unjustly dismissed 4 of Appellant's claims of unreasonable seizures

committed by Appellees, occurring at:

1)Longs Drugs, 26 May 2004; Appellant was evangelizing, & wasn't in anyone's

way, nor did he interfere with business; police claimed his refusal to leave when

manager asked him to was interference;

2)Nugget Market, 16 June 2004; Appellant was evangelizing, & wasn't in anyone's

way, nor did he interfere with business; police claimed his refusal to leave when

manager asked him to was interference;

3)Yolo County Library, 14 Sept. 2003; Appellant was using public internet access

computers according to posted rules; librarians claimed he violated the rules, but




                                          38
their assertions contradicted the conspicuously posted rules. It was harassment &

intimidation pursuant to police custom;

4)Albertsons, 25 Nov. 2003; Appellant was offering sell his Albertson's gift card to

shoppers in front of the store. He wasn't in anyone's way, nor did he interfere with

business; police claimed his refusal to leave when manager asked him to was

interference;

all lacked probable cause. Each one is pending Habeas relief in the E.D.

Court. Appellant made MOTIONS FOR INTERFERENCE in E.D. Court, which

were unjustly denied. The Younger Rule (Younger v. Harris (US Cal. 1971) 401

US 37) enables Court to provide relief with any one of the following 3 conditions,

Plaintiff demonstrated all 3:

(a)Bad Faith: All claims involve malicious prosecutions & most involve kangaroo

trials: Prosecutions with no probable cause & in the context of years of proof of

police false arrests, kidnappings, lies, & false accusations; multiple abuses of

discretion by prosecutor in hearings & trials; (b)Harassment; (c)Extraordinary

Circumstances: Appellant's real estate career was unjustly deprived him as

collateral damages, & he was held captive for 2 years over a 2 1/2 year period as a

direct result of the hatecrimes of Appellee & coconspirators; The Younger Rule

justifies intervention in the pending Habeas actions for any one of these claims for




                                          39
purposes of sec. 1983 suits if any one of the above circumstances/conditions is

present, making all of these claims cognizeable.

Appellant makes MOTION FOR INTERFERENCE BY NINTH CIRCUIT

COURT with these Habeas actions & provide relief so they can be litigated in

instant suit.


VII. INCLUSION OF ADDITIONAL CLAIMS PURSUANT TO CONTINUING
VIOLATION DOCTRINE
Appellant provided E.D. Court with AFFIDAVIT, officially documented, & court-

documented evidence & proof demonstrating a systematic pattern & practice of

violative acts committed by Appellees against Appellant, yet court failed to allow

acts outside of the limitations period to be included for purposes of claims of

damages. E.D. court argued that & that the violative acts were "discrete acts," not

worthy of relief, & that Appellant's MOTION FOR AMENDMENT TO

COMPLAINT... was filed too far in the litigation process (27 Jan. 2006), but then

the case was then delayed for almost another 10 mos. before discovery began.

These unreasonable seizures constituted criminal kidnap & unjustly depriving

Appellant of public accommodations, & were a systematic attempt to run

Appellant out of town, amounting to deprivations of fundamental liberty interests.

Carpinteria Valley Farms, Ltd. v. Cty of Santa Barbara (CA9 2003) 344 F.3d 822,

Continuing Violations Doctrine: If plaintiff can show a systematic pattern or

practice of violative acts committed against plaintiff by gov't actor, with hostile

                                          40
environment, plaintiff is allowed to claim action for relief for acts outside of the

limitations period, National RR Passenger Corp. v. Morgan (2002) 536 US 101.

Appellant requests Ninth Circuit Court order these violative acts be included in

instant suit.



VIII. INJUNCTIVE RELIEF
Petitioner makes MOTION FOR INJUNCTION against Defendant, including the

Davis police, mayor, & town council according to the following:

a. Justification

(a)the following documents filed with E.D. Court:

(1)AFFIDAVIT testimony of ...MOTION & AFFIDAVITS FOR TEMPORARY

RESTRAINING ORDER filed on 3 Dec. 2006 & ADDENDUM... dated 29 Jan.

2007; (2)OBJECTION...filed on approx. 2 Mar. 2008, with AFFIDAVIT

testimony, incorporated herein by reference; (3)ADDENDUM TO

OBJECTION...filed on approx. 18 Mar. 2008, with AFFIDAVIT testimony,

incorporated herein by reference; (4)ATTACHMENT TO OBJECTION... filed on

approx. 24 Mar. 2008; (5)MOTION FOR RELIEF... filed on 27 Mar. 2008, with

AFFIDAVIT testimony;

(b)COMPLAINT & AVIDAVIT OF IRREPARABLE INJURY:

The following recent violative acts have recently occurred:




                                          41
(1)As related in MOTION FOR RELIEF...filed on 27 Mar. 2008, I, Joseph A.

Sherman, hereby certify:

On 2 Feb. 2008 I met with Helen Fong who was one of the tenants of 800 Adams

St. #12 to sublease the unit from her. She stated she had authority to lease, & had a

master lease with the owner. We agreed to terms, we both signed the sublease, I

paid her a check for rent, she gave me the key;

On my way over to my new home that evening with my possessions, I received a

call from Helen saying she would rather I meet Eddie, her roommate, first, & she

may not want to lease the place to me. I told her it was a little late to change her

mind, I already had a lease. She then called later & said she was "canceling" the

lease. When I arrived with my things & entered the unit, Helen & her roommate

said I had to leave & they had already called the police. I refused to leave, & they

called the police;

Davis police officers arrived; I showed them a copy of my signed lease agreement,

& the check for $900+ dollars, my copy of the key, & the fact that I was inside the

home with my possessions; I had residence by all authorities. Helen objected,

saying she hadn't gotten permission from her landlord to sublease to me. I showed

officers her signed statement that she had authority to sublease; & further told them

that breaking a stipulation not to sublease without permission doesn't void the

master lease nevertheless. See Sublease; see Addendum Forty-Five to Claim



                                          42
Against City of Davis (& Addendum Forty-Five(a)), both are attached with

MOTION FOR RELIEF....

The officers unreasonably seized me when I refused to leave; there was no

probable cause; it was discrimination & unreasonable seizure. The officers unjustly

removed me from my residence & stated that if I returned I was be arrested again.

They then placed me in the police car. At that point I agreed not to return to the

residence if they would release me; no charge was filed against me. I filed charges

against the officers for kidnapping me from my home.

These AFFIDAVIT testimonies of recent violative acts make it undeniable that

Defendant's policies, consisting in their systematic pattern & practice of violative

acts against Plaintiff, continues to this very day. It has been occurring for 10 years.

"When there is a threat of future violations of Fourth Amend. rights, court do not

hesitate to conclude that there is no adequate legal remedy & that an injunction

must issue to prevent irreparable injury," Maney v. Ratcliff (DC Wis 1975) 399

F.Supp. 760. Injunctive relief is available for showing of bad faith on part

of gov't officials, Cameron v. Johnson (1968) 390 US 611. Koen v. Long (1969 DC

Mo.) 302 F.Supp. 1383, aff'd per crm (CA8) 428 F.2d 876, cert den. 401 US 293,

Plaintiff seeking injunctive relief for repeated false arrests, there is no absolute

immunity.

I, Joseph A. Sherman, certify:



                                           43
From 2003 to 2006 the Yolo superior court created 7 kangaroo trials: Yolo css. 03-

1710, 03-7477, 04-3910, 04-4128, 04-5635, & 2 2006 cases; in each of these cases

multiple rights were violated by judges Mock, White, & Johnson. My right to

release pending appeal (misdemeanors) was unjustly denied; I was unjustly

banished from a 1000 acrea section of town for 3 years, my appeals were delayed

up to 3 times the legal limit; right to speedy trial violated, right to fair trial

violated, jury prejudice occurred, etc. I was railroaded into jail for almost 2 years

when there wasn't a shred of evidence against me, & years & years of court

documented proof of crimes committed against me by these same officials (the

Davis police & Yolo d.a.). The late Al Smith, developer of the billion dollar

Stonegate development in W. Davis, & largest homeowner in Davis, called the

Attorney General for me, & accepted 50 or more collect call from me while I was

unjustly held hostage. The Yolo court doesn't offer a viable remedy for justice.



I certify under penalty of perjury that the foregoing is true & correct to the best of

my belief. Executed in Davis, Ca. on _________ 2008.



b. Irreparable damages

The ongoing hate crimes have prevented Plaintiff from obtaining a place to live.

The local Yolo court has consistently denied Sherman's rights involving civil suits;



                                            44
a civil suit to enforce a lease agreement is futile. In 200 & 2002 his rights were

denied in open & shut unlawful detainer action. In 2004, Appellant filed suit for

injunctive relief against Davis police. He spent $400 to supena witnesses; he was

provided less than 2 min. to speak, none of the 5 witnesses who appeared were

aloud to testify, court failed to look at any of the evidence & case was thrown out.

There is no adequate legal remedy through the local courts; Monroe (supra), sec.

1983 (Civil Rights Act of 1871) was created for remedy when "'courts of states fail

& refuse to do their duty in the punishment of offenders against the law,'

[Cong. Globe, 42d Cong. 1st Sess.]." Additional irreparable injuries, as claimed in

AFFIDAVIT filed on 14 Dec. 2006, include loss of more than 2 years of freedom

(see Addendum Forty-Four to Claim Against City of Davis) as direct result of

unjust jailings from the conspiracy of Appellee, Yolo d.a., & several Yolo judges,

loss of RE salesman's license & career as collateral damages, ostracizement, daily

casing & stalking of Sherman by citizens because of the severe pressure on them

from the custom of police, mayor, town council, & other officials of harassing &

kidnapping Plaintiff, loss of personal & professional relationships & friendships,

deprivation of ability to do business in many establishments, loss of income, pain

suffering & mental anguish due to this hostile environment, & more.



IX. SEC. 455 MOTION FOR DISQUALIFICATION OF JUDGE &
MAGISTRATE, IF CASE IS REMANDED TO E.D. FEDERAL COURT

                                          45
28 USC 455(a),(b)(1): "(a) Any justice, judge, or magistrate judge of the United

States shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned...(1) Where he has a personal bias or prejudice

concerning a party..."

AFFIDAVIT OF PREJUDICE

I, Joseph A. Sherman, certify the following:

Before instant case was dismissed by judge Karlton, some people in the Davis area,

& possibly some visitors, made comments within my hearing that my civil action

was going to be taken away from me, 2-3 weeks before it happened. The fact that it

occurred as they said it would is manifest evidence of impropriety of both the

magistrate judge (Brennan), & Karlton. Furthermore, the repeated unjust &

prejudice decisions that they have made, & the fact that this case has been litigated

for 3 1/2 years without reaching trial, is manifest prejudice. I additionally testify

that judge Karlton unjustly dismissed another action, my Petition for Writ of

Habeas Corpus, CIV S-4-1310, although there was more than sufficient

justification for reversing trial court's decision: Fraud on the court (improper

questioning of defense witness in jury presence & false denials of the questioning,

& falsely stating that jury records could not be opened for jury interview; equal

protection & due process violations re: Opening statement; inadmissible hearsay

allowed over my timely objections; invidious discrimination by court & d.a.;



                                           46
attorney work product violation; & more; a veritable kangaroo trial, & yet Petition

was denied by judge Karlton; demonstrating yet additional acts of prejudice.



I Joseph A. Sherman, hereby certify under penalty of perjury that the foregoing is

true & correct. Executed on ___________ 2008 in Davis, Ca.




CONCLUSION
Appellant hereby appeals to the Ninth Circuit Court for ORDER to reinstate his

sec. 1983 action, rule for inclusion of violative acts pursuant to the Continuing

Violation Doctrine & the Younger Doctrine, provide the requested Injunctive

Relief, & for new judges if remanded to district court, pursuant to the evidence &

justice.



CERTIFICATE OF COMPLIANCE

I, Joseph A. Sherman, hereby certify that this APPELLANT’S OPENING BRIEF
does not exceed the 14,000 word limit of Rules of Court (Ninth Cir. & FRAP), &
meets the Rule 28 & Rule 32 Brief requirements: Total words in Brief: 10,204.



Joseph A. Sherman
19 May 2008




                                         47
Joe Sherman
PO Box 4595
Davis, Ca. 95617
530-204-9851

                                 Cs. No. 08-16136

                   NINTH CIRCUIT U.S. COURT OF APPEALS

Sherman, Appellant, v. City of Davis, Appellee

                               PROOF OF SERVICE

I, the undersigned, hereby certify that I am not a party to the case, that I am a
citizen of Yolo County, that I am age 18 or older, & that I served a true & correct
copy of the APPELLANT’S OPENING BRIEF of this cs. on Appellee by placing
said copy in US Mail addressed as follows:

Cori Sarno, Atty
Angelo Kilday, & Kilduff
601 University Ave. Ste. 150
Sacramento, Ca. 95825



I, ____________________, hereby certify under penalty of perjury that the
foregoing is true & correct. Executed on ___ May 2008 in Woodland, Ca.


_________________________




                                         48
Joe Sherman
PO Box 4595
Davis, Ca. 95617
530-204-9851

                                 Cs. No. 08-16136

                   NINTH CIRCUIT U.S. COURT OF APPEALS

Sherman, Appellant, v. City of Davis, Appellee

MOTION TO PROCEED IN FORMA PAUPERIS & AFFIDAVIT OF INCOME
& FUNDS

Appellant hereby makes MOTION TO PROCEED IN FORMA PAUPERIS in this
action according to the following AFFIDAVIT:

I, Joseph A. Sherman, hereby certify that I have approx. $400 in my bank account.
I am currently employed part time (8 hrs./ week) & looking for employment; total
gross mo’ly income currently, $320. My ave. mo’ly income over the last 6 mos. Is
approx. $1500 (seasonal). Due to local discrimination & custom of
police/mayor/council (Appellee) I have been deprived of a place to rent, although I
repeatedly applied.

Total value of property: Truck, $2500, text books, $75.


I, Joseph A. Sherman, hereby certify under penalty of perjury that the foregoing is
true & correct. Executed on ____May 2008.




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