District Court Judge Michael R. Hogan is a landlord with many rentals and receives dividends from Pulte Group according to his financial disclosures. Pulte Group is the largest home construction company in America and gives millions of dollars to the think tanks that create HUD policy.
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THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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Appeal No. 11-36055
Maria Caterina Rosenfeld,Plaintiff – Appellant,
v.
James Hackett, et al.,Defendants – Appellees,
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CASE NO. 6:07-CV-6209
THE HONORABLE JUDGE MICHAEL R. HOGAN
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APPELLANT’S REPLY
URGING REVERSAL AND REMAND ON FAIR HOUSING ACT CLAIMS
July 4, 2012
I received the Appellees' Brief in my box at the Corvallis Post Office on June 26, 2012. I see that the Appellees certify that their Brief was also emailed to me and this is not true. Along with this Reply to the Appellee’s Brief, I am submitting a motion to accept an Addendum that contains the Transcript of the LBHA Board Meeting that took place on January 18, 2005 that was listed as an excerpt of the record because it was Exhibit 15 in the Judge’s Notebook #1. Because of my extreme poverty I could not print any more pages of the references that I made in my Brief.
INTRODUCTION
I brought claims to the lower court under federal Fair Housing Statutes for Reasonable Accommodation and Retaliation that stemmed from a severely hostile living environment created by James A. Hackett where he wanted to show that units in a housing complex where I lived were full so he could access $4 million in IRS tax credits to build a housing complex that would make secret private investors very wealthy. He could not fill the units because they were too run down and inadequate to house the disabled and poor for which they were intended, and for which they were subsidized by HUD and by the City of Corvallis. So Mr. Hackett came up with a plan in conjunction with Benton County Probation and Parole and with Benton County Mental Health - both under the control of the Benton County Commissioners. Through a contractual agreement with the owners of my housing, Mr. Hackett became my property manager and filled each hard to fill unit with a hard to place felon; many of them severely mentally ill making them uncontrollable. These poor souls had very long and very serious criminal histories. Included in Mr. Hackett’s picks were a predatory sexual offender who was never to be around young girls because he had a history of sodomizing them; the leading methamphetamine dealer for the Willamette Valley who injected his little baby, Michael, with methamphetamine in the upstairs of my house; a man with a profile of psychopathic serial killer who had over sixty arraignments, including twenty involving children, who stalked my child beginning the day after he was moved upstairs at Mr. Hackett’s personal request; a man who had killed someone; and at least four other felons.
Mr. Hackett and the Linn Benton Housing Authority terminated my HUD voucher because I advocated for the Fair Housing rights of seventeen children, including my daughter, to live in that housing free of discrimination; because I testified for another severely disabled tenant, Jim Gabbard, and he refused to grant me Reasonable Accommodation because I made his crimes known to many levels of government. Many governmental agencies tried to gain attention to Mr. Hackett’s crimes and my plight yet no one would claim oversight of this rogue housing authority except Linn County Commissioner John K. Lindsey (Appellant’s Brief Appendix /R21/R45) and he could do nothing without the cooperation of the Benton County Commissioners.
United States Attorney Karin Immergut and Congressman Peter DeFazio (Document 2-5, pages 5 - 10) wrote letters for me. Corvallis Police Chief Gary Boldizsar, Benton County Sheriff Jim Swinyard and Oregon State Senator Frank Morse (Document 2-5, page 12) also tried to help and had no jurisdiction. For this reason, I ask for clear direction from the Appellate Court to establish oversight of the Linn Benton Housing Authority by the Linn and Benton County Commissioners so children and the disabled will not have to suffer as my child and I did and can have housing that is safe and decent – the intent of HUD and the Fair Housing Act.
I bring before the Honorable Justices of the Ninth Circuit Court of Appeals a request to reinstate my Fair Housing Act claim for Retaliation, a request that James A. Hackett be held personally accountable for that retaliation along with the Linn Benton Housing Authority and also for failure to make Reasonable Accommodation of my disabilities. Mr. Hackett was required to follow all federal statutes pertaining to housing authorities in order to accept federal money and he did not do this so he needed to control every aspect of LBHA’s business to cover up his violations of important statutes protecting children and also his IRS fraud.
I ask that the Justices allow me to have witnesses that I need to show a pattern of discrimination against the disabled, children and the poor which thereby shows intent of that discrimination, a pattern and therefore intent of falsification of documents within the housing authority, a pattern of intentional violations of the Protection of Children Statutes and a pattern and therefore intent of requesting housing authority clients not to report income. The lower court excluded all of these at LBHA’s request.
I wish to be able to provide information to a jury of the administrative conciliation offer made to me for the purpose of showing the Appellees’ motive in failing to accommodate my disabilities and motive to retaliate. My activism for children based on their familial status where Mr. Hackett and the Linn Benton Housing Authority (LBHA) violated the Pickford/Leonard children’s Fair Housing rights to live free from coercion, intimidation, harassment and threat of rape or death, was one of my protected activities.
I ask the Justices to recognize my need for true copies of the original digital recordings of four hearings in the lower court where I am certain that the transcripts provided to me were not verbatim records of the words spoken at those hearings and there was a critical nexus between the words that were omitted, altered or added and my pending proceedings in the lower court. The most glaring example of this is when the Appellees’ Attorney Stephen Rickles objected to my request to include my extremely disabled neighbor Jim Gabbard as a witness where I needed to show the pattern of discrimination against the disabled in order to show intent and motive, and Mr. Gabbard had much first hand information about this.
Mr. Rickles’ objection, that I wrote of in my Brief, proves my case as it was his admitted effort to keep the doors of the federal court closed to the disabled and to me in violation of the Fourteenth Amendment’s due process clause and equal protection clause. When I objected to his discriminatory objection in my submission which was Document 412 on December 1, 2011, I was provided a transcript in which the stenographer omitted that objection on December 3, 2011. I believed that if this omission could not be corrected and I could not have the witnesses that I needed to show intent, there would also be no chance of a fair trial.
On November 22, 2011, the lower court judge promised a minute order listing the admissible evidence for the upcoming trial (Transcript -November 22, 2011, pg.65,line15) and this had not been provided and I had just learned that the Appellees had hired an Expert Witness and had not honored the Federal Rules of Civil Procedure where certain information must be provided 90 days prior to a trial concerning an Expert Witness
Contrary to LBHA’s statements, I have no personal opinion of the lower court judge. However, I am absolutely certain that he did not read much of my case through his own demonstration of this and this has created a fundamental unfairness in this case. Many of the rulings that he made throughout the history of this case would not have been legally or logically possible if he had familiarized himself with my submissions in a manner essential to fairly evaluate these Fair Housing claims.
I also believe he did not know of the critical statutes enacted by Congress to protect children in federally funded housing from sexual predators and other dangerous felons and the reporting of Mr. Hackett’s and LBHA’s intentional violation of these Protection of Children Statutes[1] was one of my protected activities.
I tried as hard as I knew how to understand each of his orders and comply. I had a reverence for the process when this case was initially filed. I was blind sighted by the dismissal of my remaining claim and I had no fore warning that this could happen.
My Reasonable Accommodation claim was strong. I know that Mr. Hackett and LBHA failed to even attempt to contact my witnesses for my disabilities because they were afraid of prosecution for crimes against children. Mr. Hackett and LBHA write that Mr. Hackett was properly dismissed as a defendant and that I could not have prevailed on my Retaliation claim because of the nexus timing of my protected activities and the termination of my housing assistance. Neither is true. I have already shown in my Brief that the nexus between my protected activities and the end of my assistance supports my claims of Retaliation. LBHA is turning a blind eye to the partial treatment [toward the defendants] that I received in the lower court because it is to their benefit, however I was treated quite poorly and I watched the judge’s face quiver in anger when I mentioned my concern with the altered transcript. His tone became harsh and he dismissed the case without prior warning.
ARGUMENT
I ask that all of my arguments in my opening Brief be used to negate the arguments presented in the Appellees’ Brief as well as further arguments in this Reply. At no place in Order 95 does the lower court dismiss my claims against James Hackett and the Linn Benton Housing Authority under the Civil Rights Acts or my Fair Housing claims as the Appellees write in their current Brief on page 6, paragraph 1.
The Appellees have distorted the claims that I brought before the court. They write that my claims changed and this is not true; they have always been the same. In Document 2, I wrote:
“both James Hackett and Donna Holt-Cook have said that my request for Reasonable Accommodation is pending verification by a qualified provider. I have provided documents verifying my disabilities written by three providers of excellent qualifications and James Hackett has refused to acknowledge them repeatedly.”
“I believe that the Housing Authority refused to consider my documentation in support of my request for reasonable accommodation in retaliation for the fact that I had filed the previous complaint with Fair Housing and also because I voiced my concerns over the funding, with HUD vouchers, of units lived in by a methamphetamine dealer, a predatory pedophile, and other dangerous felons and drug dealers (some in violation of federal law) under James Hackett’s direction and his knowledge that children were suffering.”
“My young daughter and I were forced to endure a living situation that no child should ever have to suffer ….. over a period of five years that the owners and the management company had placed a pedophile, a predatory pedophile, two methamphetamine dealers and other violent felons in the units surrounding seventeen children.”
“Later, when I was the whistleblower for James Hackett’s violation of HUD law, Mr. Hackett terminated my HUD voucher because I had followed the (income reporting) directions that the housing authority had given me.”
“Children cannot survive a neighborhood like Pickford/Leonard without serious damage to their souls.”
“I witnessed as my little neighborhood was ruined under what I believe was a thought out plan to generate a solid money flow of federal funds through Mr. Hackett to dangerous criminals back to Mr. Hackett and then into Camas Commons and will end up in the pockets of the private investors through a tax credit system.”
“I believe that the corruption and collusion involved in the government of Corvallis and the Linn Benton Housing Authority and also Willamette Neighborhood Housing Services is so pervasive and has such a devastating effect on children that it deserves the attention of the Federal Court.”
I asserted claims for intentional and negligent emotional, mental and physical distress. I dispute all of the summary judgment rulings made in the lower court in Order 95. The statute of limitations is not a factor because Mr. Hackett’s violations should be considered as a long continuous pattern of defamation and state torte claims by James Hackett from 2000 through the present.
My requests for Reasonable Accommodation were first made in April 2004 at the counter of the Linn Benton Housing Authority. I was refused the forms. Amy Fauver, who was in charge of making sure that LBHA knew the rules of HUD, told me in December 2004 that LBHA had no right to refuse me Reasonable Accommodation forms. I provided a letter and disability form to LBHA before my hearing on December 9, 2004 (Document 2-2, pages19,20) and Mr. Hackett concealed it from the officer.
A motion for summary judgment by the Benton County Commissioners was granted in Order 95. I had no idea what summary judgment meant. I was given no guidance that affidavits are required in order to prevail against a motion of summary judgment.
The Appellees are providing misleading information where they exclude that the lower court refused to grant summary judgment on my claims against LBHA for Retaliation in Order #95 (Appellees’ E.R. 62-65 and 68) where the judge wrote:
“In her second administrative complaint dated February 3, 2006, Rosenfeld alleged that Hackett and Donna Holt-Cook lied to the person who investigated her first complaint, and that LBHA refused her August 2 and October 5, 2005 requests that LBHA consider her documentation of disability in retaliation for her filing of the first administrative complaint.”
And:
“Rosenfeld’s administrative complaints remain pending.”
And
“Rosenfeld’s administrative complaints allege discriminatory housing practices unrelated to LBHA’s property management activities, including failure to provide reasonable accommodation and retaliation. The court cannot conclude under LBHA’s analysis that claims based on these allegations are barred, particularly in light of LBHA’s assumption that the first administrative complaint tolled all applicable limitation periods.”
REINSTATEMENT OF MY FAIR HOUSING ACT RETALIATION CLAIM
My protected activities included reporting Mr. Hackett’s violation of the Protection of Children Statutes in activism for the Fair Housing rights of the seventeen children at Pickford/Leonard to live without discrimination based on their familial status; my testifying for Jim Gabbard in his disability claim against Mr. Hackett and LBHA and my filing an administrative claim against Mr. Hackett and the Linn Benton Housing Authority.
Mr. Hackett and LBHA were well aware that my administrative claim of Retaliation was still open administratively during the pre trial conference and stood silently as this was discussed.
LBHA argues that the rule established in Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2004) “precludes any retaliation claim against the Housing Authority based on its alleged response to plaintiff’s complaints about “criminal” fellow tenants.” I was advocating for children after Mr. Hackett placed nine practicing felons, one with a lifelong registration as a child predator and one with a history of stalking children in their housing. The placements violated the Protection of Children Statutes and where the day and night activity of these “fellow tenants” caused terror to be experienced by the children. This goes way beyond Ms. Edward’s claims and in a different direction. LBHA has once more misstated my claims.
Mr. Hackett was aware that this was illegal. http://www.katu.com/news/specialreports/18896624.html
LBHA refers to Harris v. Forklift Systems, Inc. - 510 U.S. 17 (1993) for the applicable standard for hostile environment:
(a) The applicable standard, here reaffirmed, is stated in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57: Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment, id., at 64, 67. This standard requires an objectively hostile or abusive environment--one that a reasonable person would find hostile or abusive-as well as the victim's subjective perception that the environment is abusive.
(b) Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
Any reasonable fact finder who took the time to review the horrors that my daughter and I lived in because of Mr. Hackett’s illegal placements at Pickford/Leonard would see that this standard was met.
LBHA has ignored facts set forth in my Brief. I had reported Mr. Hackett’s violations of federal statutes before Corvallis City Council in October 2003 after Walter Morgan killed our cat and tried to smash in our window while Corvallis Police Officer Phillip Howrey hid in the bushes watching. Mr. Hackett allowed Mr. Morgan to retain his residency in his HUD funded unit for another month and he killed our cat on the day he left. I went into the Linn Benton Housing Authority in late March or early April and gave them a note stating that I had to move because it was neither safe nor healthy for my child and one week later I was told my voucher would be terminated. I reported Mr. Hackett’s illegal placements to the LBHA’s Board on January 18, 2005 and my voucher was terminated on February 28, 2005.
PERSONAL LIABILITY OF JAMES HACKETT
Donna Holt-Cook, Rick Stewart and Paulette Postell agree that Mr. Hackett made all decisions in the Linn Benton Housing Authority. I took my requests for reasonable accommodation directly to Mr. Hackett.
WITNESSES TO SHOW PATTERN, INTENT AND MOTIVE
The lower court judge told me that I could not speak of the felons and their continual harassment, coercion and intimidation that caused the hostile living environment that in turn caused our PTSD. The intensity of the horror that I suffered can only be understood by telling what happened to my child and to me. We were tortured in our own housing and Mr. Hackett knew of this. His actions were perverse, took place over a long time and when I shared with him how I could no longer function he placed more extremely dangerous felons in my housing.
In their Brief, LBHA now claims there were no ineligible clients placed at Pickford/Leonard by Mr. Hackett and this is a falsehood. I have included the Transcript of LBHA’s Board Meeting that took place on January 18, 2005 and another tenant, D(redacted) P(redacted), recalls eight felons and shares how it affected her twin girls and my daughter and me. In the transcript, the Chairman of the Board, Howard Rhoades, states that I brought a lot of supporting documentation of gross mismanagement of my complex by LBHA. My daughter’s math teacher testifies how much my daughter suffered. Mr. Hackett sat right next to me as I called him on his placement of dangerous felons and I advocated for the Fair Housing rights of the seventeen children based on their familial status and one month later my assistance was terminated.
On pages 19 and 20 of the Transcript (E.R.14) D(redacted) P(redacted) helps refute the Appellees’ false statements that there were no felons in that housing:
“I met Caterina in 1999 when I moved into the Pickford/Leonard apartment complex. And at the time it was, I think it was owned by CNHS, right?
Yeah. Anyway, basically what I’m here tonight to say is we had at least eight felons over a period of four and a half years move in and out of these units constantly. And it’s just disgusting. I have twin girls and at the time I believe they were 10, somewhere around there. And, you know, as a mother it’s such a stress to have to always worry about what type of neighbor was outside with my children. I mean, we had people like Barry Brown, James Reid, he just got out of the penitentiary and was placed with his wife and child and was living above Caterina. And I caught him numerous times up on the roof at night, he was looking into our apartment, and just people that shouldn’t have been in there in the first place.
We were on HUD at the time and, you know, it’s really – it was hard because I don’t know if it’s because we were low income, but I didn’t feel like my family or myself had a voice. I constantly complained to Jim Moorefield and other people that were employed at CNHS and nothing was done and no one seemed to really care. I’m assuming it was a basic dump off ground for criminals. And, you know, Caterina went through a lot. These people moved constantly, you know, into the unit above her and I saw how this affected her and how it affected (redacted), it’s really negative.”
On pages 20 and 21 of the Transcript Ms. Grzekowiak says:
“I am Sandy Grzekowiak, I am a teacher at West Linn Middle School in Corvallis, and I have had (redacted) and the P(redacted) girls in my math classes. And I just – I’m also a character witness for the mom. And I’m also wanting you to know that the concern that came to the school on behalf of parents looking for ways even if we could help expedite what was going on. Our major focus, and I didn’t hear you mention that, was when (redacted) became quite ill and you were tying to nurse her back to health. I mean, she had almost a near death experience and you were juggling the criminal upstairs, trying to take care of your daughter, and it came back to the school and the teachers, how could we best support this child. And truly, (redacted) and her mom were in a total state of distress. And what she said about (redacted) condition, I mean it was taking a serious toll on that child and I had her in advanced algebra classes and she went from a highly energetic productive young lady to one that we were constantly watching for signs as to whether or not we needed to send her to a counselor.
And I guess I’m here to implore you that what’s best for our kids is for them to have safe housing. And I also find that this – there is something wrong. We have halfway houses for criminals, but most of them should not be mixed in with the wonderful families. We do have wonderful children. And that’s really all I’m here to say, Sir.”
CONCILIATION OFFER TO SHOW MOTIVE AND INTENT
In the pre trial conference on November 22, 2011, Counsel for the Appellees, Stephen Rickles, stated that there was no conciliation offer of $230,000 and a HUD voucher. Mr. Rickles said that “it did not happen.” (Transcript of November 22, 2011conference) Mr. Rickles statement is a falsehood as can be seen in Madeline Rubin’s Affidavit which was R22 in Appendix I with my Brief. On June 23, 2005, Federal Fair Housing Investigator Ife Asantewa called my home. She said that Mr. Hackett wanted to conciliate and give me back my voucher because “he is afraid of criminal prosecution.” This makes the conciliation offer an exception to the FRCP for exclusion of settlement offers where it is written:
Rule 408. Compromise Offers and Negotiations
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.(emphasis added)
TRUE COPIES OF DIGITAL RECORDINGS
The Appellees did not oppose my request for true copies of the original digital recordings of the pre trial telephone conference that took place on November 30, 2011 so I ask the Justices for a ruling to the lower court to ask the lower court to make these available to me in digital format as true copies of the original digital recordings so that I can have them transcribed as verbatim records of the words that were spoken. Four transcripts that have been provided to me are substantively different than the words that were spoken and this undermines the perception of integrity in the court. These recordings are so simple to reproduce that I humbly suggest that similar requests by others be honored for the sake of Justice. They cannot be altered without signs of tampering so it seems this would be a standard supplement to every transcript.
COUNTY COMMISSIONER OVERSIGHT
The Appellees do not argue against commissioner oversight clarification and the Benton County Commissioner’s did not respond to the Brief so I ask that the Justices help with this question. Linn County Commissioner is very eager for oversight to clean up this corruption that is harming children in two counties.
ABUSE OF DISCRETION IN LOWER COURT DISMISSAL
I motioned for an attorney at the beginning of this case for my daughter. The lower court did not grant that motion.
On February 1, 2008 in Document 47, I motioned the court for LBHA’s insurance company information. Mr. Hackett and LBHA responded that they did not have an insurance company even though both the Appellees and Mr. Rickles were well aware that in truth they are insured by the Housing Authority Risk and Retention Pool that pays Mr. Rickles’ salary. The American tax payers are paying to keep the court’s doors closed to the disabled and children of the poor. The lower court did not grant my motion. I then supplied the court with proof that Mr. Hackett was lying and the lower court made no effort to correct this omission of insurance information.
Under FRCP’s Rule 26:
Duty to Disclose; General Provisions Governing Discovery (a) Required
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.(emphasis added)
In the congressional notes of the Advisory Committee concerning the above rules in the 1970 Amendment:
Disclosure is required when the insurer “may be liable” on part or all of the judgment. Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment.”
Before I filed this case, Linn Benton Legal Aid told me that the Linn Benton Housing Authority was actually a tax shelter for a group of attorneys including Robert A. Blair on Rodman Street in Washington D.C. who owned the Julian Hotel in Corvallis that was part of HUD’s mod rehab program and partnered with Mr. Hackett and LBHA. Mr. Blair is a director for IPG Photonics and his firm has spent many years lobbying Congress for ways to avoid taxing the wealthy. One of these ways is to partner with a HUD entity such as the Linn Benton Housing Authority. I set out to follow the money trail and discover why anyone would place and HUD fund nine extremely dangerous felons amongst seventeen children and then go after me when I brought it to their attention. Commissioner Lindsey informed me recently that I uncovered a $300 million scam in Oregon where this illegal use of HUD money is putting the public in danger of death and rape where the state hospitals are emptying their beds in Oregon’s neighborhoods. He has been in communication with Senator Grassley’s investigator Brian Downey as the Senator is both on the Senate Judiciary Committee and also deeply concerned with the illegal funding of sexual predators in housing around children and against federal law.
I do not owe the Linn Benton Housing Authority any money. I reported income as they instructed me to. The sheets that were prepared at Mr. Hackett’s coaching were not prepared by the keeper of DHS’ records as LBHA reported, they were prepared by a new worker named Michelle Navaro who had no firsthand knowledge of me or of the records. They are purely hear say. In contrast, every piece of evidence I presented had either a declaration or affidavit and a live witness with firsthand information and the lower court judge failed to recognize this. LBHA argues that I did not take my claims to state court and I could not. It would have cost me $2000 dollars and I did not have any money. The lower court judge asked Mr. Rickles where I should have appealed. (Transcript November 30, 2011,line #5,page 4) I had every right to bring this retaliatory termination of my assistance to the Office of Fair Housing and Equal Opportunity about one month after it occurred and then to federal court when LBHA and Mr. Hackett lied under oath to federal Fair Housing investigators.
I worked very hard to prepare for the trial scheduled for July 29, 2009 and it was the motions in limine, about 30, mailed to me three weeks after they were filed (and recall from my Brief that the lower court did not allow me email notification of every submission as the Judiciary Committee mandates) and after all of my witnesses had been subpoenaed and paid for in four counties all over Oregon and Washington, that stopped the trial from proceeding. Motions in limine must be presented long enough before a trial to not affect the trial date.
I realized that I was not being treated with respect during that pre trial conference when I tried to hand the administrative Retaliation claim (Document 2- 13, pages 14 – 17 on August 20, 2007 with my first submission) that was still open to the judge when he forgot that he had seen it (in contrast to his prior Order 95) and questioned whether it existed. He then turned his head sharply away from me and simply ignored me as I explained that I had it for him. He would not accept it.
The lower court judge also told me that I probably did not know what an affidavit was. I had turned in over twenty to show the testimony that my witnesses would express at the trial. This let me know that he had not read my submission titled: “Affidavits” (Document 74-2) submitted a year before. Although the discovery rules state that expert witness information should have been provided to me 90days before the trial, the lower court judge ruled that I must make do with two days before the trial and then I did not receive anything at all concerning their expert witness before December 7, 2011. It would have been impossible for me to discover anything about the expert witness before questioning her in front of a jury.
From the Advisory Committee notes in 1970:
“Subdivision (b)(4)—Trial Preparation: Experts. ……….. The subdivision deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party but who are not expected to be witnesses. It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.
Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand.”
About six working days before the trial the lower court ruled that I must provide all of my medical reports even though I had been pleading with the housing authority to contact my medical verifiers since December 2004 and they had made no attempt. My witnesses were not expert witnesses, they were first hand witnesses and those who had diagnosed me. I did manage to get all of their reports gathered before the trial which was difficult because I had to obtain releases from doctors out of state and rely on medical offices to dig into their archives. The most important documents had been provided to the court years before, including all of the diagnosis – many sent to Mr. Hackett before my hearing in December 9, 2004.
My Reasonable Accommodation claim is strong. My request for Reasonable Accommodation was first made in April 2004 and I was told I could not have the forms at the counter of LBHA. Mr. Rickles provides false information where he writes that my request for Reasonable Accommodation was simply for a different worker. I had made a request to disregard the income reporting rules during the time that my daughter was stalked because I did not read anything and I filled out forms in keeping with the false information given to me by the lead case worker when I painted a house and was paid by LBHA. The initial Reasonable Accommodation forms filled out with Madeline Rubin, LCSW, are in the Addendum as E.R.9,10,11,12. In those forms it is written:
“The following member of my household has a disability: my daughter, myself (PTSD from life threatening living situation; stalker plus 8 other dangerous criminals.)”
And:
“Client was unable to fill out forms correctly due to life threatening (on going) living situation resulting in PTSD.” “Living situation was extremely dangerous and made it impossible to give attention to anything except survival.”
Exhibit 62, page 2 (E.R.10) and was filled out by therapist Madeline Rubin who had formally diagnosed me and referred me for treatment to Dr. Catherine Del Armstead at Oregon State University and contains this information:
“Caterina is suffering from PTSD as a result of having a criminal unlock her doors, getting into her computer, taking pictures through her windows, taking bolts out of her car frame, disconnect[ing] her phone, in short, the man who lived above her terrorized her & her daughter. FBI told Caterina he has profile of serial killer.”
Also:
“Caterina has had trouble concentrating and doing paperwork. She has had to drop her college classes.”
Also:
“Paperwork filled out during this extremely stressful period should be disregarded as all her energies were used keeping her & her daughter alive.
When I turned these two forms in to Mr. Hackett I had the “Verification for Reasonable Accommodation” pages attached. Highly qualified therapist Madeline Rubin provided her contact information including a phone number and was never contacted to verify her qualifications or to further explain the nexus between my PTSD and need for accommodation. In the Addendum are Ms. Rubin’s Affidavit and resume that were also provided to the Appellees and the court as Exhibits in the Judge’s Notebook #1 and may be found at E.R.3,4,5,6,7,8.
LBHA claims in their brief that they cannot make accommodation in reporting rules and yet they did for another Mr. Smith whose “Last Chance Agreement” is included in the Addendum for this Reply.(E,R.2 /Judge’s Exhibits Notebook #1; Exhibit 43)
The money in question was when I had applied for a domestic violence grant to move out of the hostile living environment that Mr. Hackett created at Pickford/Leonard. See the intake worker Art Kyle’s summary of my visit where I made that request for what he codes as EA for “emergency assistance”.(E.R.1/Document2-2,page 7)
Dismissal under Rule 41(b) is a sanction, to be imposed only in “extreme circumstances.” Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir.1996) (quoting Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986)
The case Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996) has no similarity to mine. It is not a civil rights case where the public interest is at stake. Robertson’s appeal was dismissed because of his failure to respond to a show cause order or to comply with prior court orders and this after the court had reinstated the action after a previous dismissal that came with a warning about a possible dismissal. I have tried at every turn to follow the orders given to me by the court. The only times I asked for review by a higher court was when the rulings were completely outside of the realm of truth. The only time I asked for more time was right before my daughter’s wedding, when the court was in possession of my original affidavits that I needed for the original exhibits and when my 86 year-old mother had two cancer surgeries in another city and needed my help.
"Because the sanction of dismissal is such a harsh penalty, the district court must weigh five factors before imposing dismissal: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to [defendants]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Porter v. Martinez, 941 F.2d 732, 733 (9th Cir.1991) (quotations omitted). The court weighs the same five factors in determining whether to dismiss an action for lack of prosecution. See Carey v. King, 856 F.2d 1439, 1440 (9th Cir.1988). "[T]he key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir.1990).
“The key factors are prejudice…..” The prejudice in dismissing my claims is against the children of the poor and against those with disabilities. There is no prejudice in remanding this case back to the lower court and providing it with a judge familiar with Fair Housing civil rights cases.
During the pre trial telephone conference on November 30, 2011(Transcript at #5, page 33), the attorney for the Appellees, Stephen Rickles stated:
“We’re certainly happy to meet her on that ground to extend this trial by a couple of weeks.”
So it would not have prejudiced LBHA to allow my continuance request. I told the judge’s clerk, Jill Wright on Friday, December 1, 2011 that the judge had not provided the promised evidentiary minute order and I did not get the Expert Witness information so I would like to have a continuance and she told me that she had a way of letting the jury know immediately and that these changes often happened. I did not wait to the last minute. I filed a warning on Monday and a motion for continuance on Tuesday. The judge was in Portland for his retirement party so I was very concerned with making sure he received my motion. Christy Weller assured me that she sent it to the lower court judge’s clerk immediately. I was never provided with either the Expert Witness information or the minute order concerning evidence admissible for the trial.
CONCLUSION
I would like the Ninth Circuit Court of Appeals Justices to reinstate my Fair Housing retaliation claim. I would like defendant James A. Hackett and defendant LBHA to be held liable for his retaliation against me and for failure to make reasonable accommodation for my disabilities. I would like the Justices to clarify the oversight authority that the Benton County Commissioners have according to Oregon Revised Statutes 456 and according to the intent of the United States in the creation of housing authorities and HUD. I would like to be able to reference before a jury, without fear of dismissal of my case, the conciliation offer made to me by Mr. Hackett and the Linn Benton Housing Authority of $230,000 and a HUD voucher if I would agree to lie about Mr. Hackett’s violations of the Protection of Children Statutes amongst seventeen young children. I would also like to have clear direction as to which pieces of evidence I will be allowed to use before a jury in a trial. I would like a judge familiar with the Fair Housing Act.
I advocated for the Fair Housing rights of children based on their familial status and I ask that you hear me. James Hackett destroyed my daughter’s childhood.
Under threat of perjury everything I have written is true and correct.
Maria Caterina Rosenfeld, July 4, 2012
[1] The Protection of Children Statutes are: U.S. Code 42, Chapter 135, Subchapter V, §§ 13661, 13662 and 13663 which make it imperative that housing authorities do criminal background checks and make it illegal to use federal money to provide housing for those with a life time registration as a sex offender and certain other felons.
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