Action for Justice, Pro Se

Karen Marie Kline,
               Plaintiff,
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,
                Defendants.

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
have immunity.

“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 punitive damages.

“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 dismissed.

If facts are in dispute, this case must be adjudicated and not summarily dismissed.

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 invoking them.

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 WITH
DISABILITIES

SUBCHAPTER II - PUBLIC SERVICES

Part A - Prohibition Against Discrimination and Other Generally, Applicable
Provisions

Sec. 12131. Definitions

-STATUTE-

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 dismissed.

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
(505)

I certify that I mailed a true copy to opposing counsel today, April 26, 2004.