Richard L. Ray                                         Defendant

Tommy W. Wallace                                  Defendant

James B. Zimmermann                              Defendant

Richard Davis                                            Defendant

Pat McDowell                                            Defendant

Leslie P. Dixon                                           Defendant

Kerry Young                                              Defendant

Betty Davis                                                Defendant

Becky K. Malone                                       Defendant

William B. Jones                        Defendant

Dolena T. Westergard                Attorney. for Kerry Young

Robert S. Davis                         Attorney for Betty Davis, Becky Malone

L.Charles van Cleef                   Attorney for Betty Davis, Becky Malone

"Existence of both pattern of racketeering activities and enterprise were issues for proof at trial and not bases for pretrial dismissal of indictment under this chapter on ground that enterprise had no recognized existence other that commission of charged predicate acts." U.S. v. Shakur, D.C.N.Y. 1983, 560 F.Supp. 347.

"In prosecution under this chapter, jury is entitled to infer existence of enterprise on basis of largely or wholly circumstantial evidence." U.S. v. Elliott, C.A.Ga 1978, 571 F.2d 880, rehearing denied 575 F.2d 300, certiorari denied 99 S.Ct. 349,439 U.S. 953, 59 L.Ed.2d 344.

"A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime's completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself." Salinas v. U.S. 118 S.Ct. 469 (1997). (emphasis added)

ISSUE ONE: Whether the order from which appeal is

taken in this civil RICO case is appealable based on the

termination of the litigation, or whether there exists

some other basis of appellate jurisdiction ………………………..……18

ISSUE TWO: Whether Plaintiff's Complaint gave fair

notice and rested on more than conclusions alone ……………………. 21

ISSUE THREE: Whether the Defendants deceived the Court

and failed to engage the issues in the Plaintiff's Complaint …………... 23

ISSUE FOUR: Whether the Plaintiff's Schultea Reply was tailored

to the defense of immunity and supported with sufficient precision

and factual specificity to raise a genuine issue as to the illegality of

the defendants' conduct at the time of the alleged acts …………..…… 28

ISSUE FIVE: Whether the Court failed to determine what the

current applicable law was, and what the real facts were ……….……. 35

ISSUE SIX: Whether the law was clearly established at the time

of the alleged violations ……………………………………………….. 39

ISSUE SEVEN: Whether the Court erred in using 12(b)(6) in

dismissing a RICO complaint alleging intentional

judicial trespassing ……………………………………………………. 44

ISSUE EIGHT: Whether the Court erred in not addressing

the injunctive relief sought by Plaintiff ……………………………….. 50

ISSUE NINE: Whether the Magistrate did not look beyond

the Defendants' lies for his Findings ……………………………..……. 54

ISSUE TEN: Whether the Court erred in not abiding by

the rules of procedure ……………………………………………..……. 57

960 F.2d 19, 21 (5^th Cir. 1992)……………..…………………. 46

5^th Cir. Sept. 8, 1999 ……………………………..…………… 41

C.S.Ill. 1983, 713 F.2d 1272 …………………………….…38, 47

438 U.S. 478, 506, 98 S. Ct. 2894, 2911 (1978) …... 29, 30,43, 45

43 F.3d 973, 973, 975 (5^th Cir. 1997) …………………….…… 46

5^th Cir. Jul 14, 1998, N. 96-40634, 5^th Cir. Website …… 42, 43, 45

759 F.2d 412, 421 n.11 (5^th Cir.) ………………………...… 52, 53

93 F.3d 813, 5^th Cir. 1998 …………………………………..…. 36

Davis v. Bayless, 5^th Cir Nov. 22, 1995, HTML

Document: 94-20552-cv0.htm (5^th Cir. Website) ………….. 52, 58

101 S.Ct. 183, 66 L.Ed.2d 185 (1980) …………………….…… 49

Inc., D.C.N.Y. 1983, F.Supp. 83 ……………………..…..… 38, 48

987 F.2d 278, 284 (5^th Cir. 1993) ………………………….……. 46

108 S.Ct. 538 (1988) ……………………………………………. 49

457 U.S. 800, 818 (1981) ………..……… 29, 30, 35, 36, 40, 43, 45

5^th Cir. April 14, 1999, document 97-41553 ……………….……. 40

130 F.3d 143 (5^th Cir. 1997) ………………………………..…… 46

878 F.2d 835, 836 (5^th Cir. 1990) ………………………….… 52, 58

483 U.S. 350 (1987) …………………………………….…… 41, 42

466 U.S. 522, 541-42 (1984), S.Ct 1970 (1984) ……………… 52, 53

762 F.2d 444, 446 (5^th Cir. 1985) ………………………………… 45

118 S.Ct. 469 (1997) ………………………………………....… 5, 48

117 F.2d 110, 115 (5^th Cir.) ……………………………….……… 42

73 F.3d 546, 577 (5h Cir. 1996) ……………………………… 53, 55

116 F.3d 728, 733 (5^th Cir. 1997 ……………………….… 41, 42, 43

C.A.Ill 1974, 502 F.2d 1351 ……………………………………… 53

C.A.Ga 1978, 571 F.2d 880 ………………………..…… 5, 38,47, 48

D.C.N.Y. 1983, 560 F.Supp. 347 ……………………….…… 5,38, 47

974 F.2d 631, 645 (5^th Cir. 1992) ……………………..….…… 52, 58

W. Va. 1906, 143 F. 433 ……………………………….……… 31, 59

28 U.S.C. 1291 …………………………………..………………………. 20

"A final decision within significance of this section dealing with appeals depends not on its name, its propriety or its normal function but rather upon the determination or refusal to determine a justiciable issue." Manufacturers Cas. Ins. Co. v. Arapahoe Drilling Co., C.A.N.M.1959, 267 F.2d 5. (emphasis added)

"Whether a judgment not "final", within the meaning of this section, ought nevertheless be considered "final", in the sense of precluding further litigation of the same issue, is dependent upon such factors as the nature of the decision, adequacy of the hearing, and opportunity for review." Lummus Co. Commonwealth Oil Refining Co., C.A.N.Y.1961, 297 F.2d 80, certiorari denied 82 S.Ct. 601, 368 U.S. 986, 7 L.Ed.2d 524. (emphasis added)

"Court of Appeals always has jurisdiction to determine whether it has the authority to entertain and adjudicate an appeal." U.S. v. Hitchmon, C.A.5(Fla.) 1979, 602 F.2d 689, on remand 609 F.2d 1098.

"Neither use of specific words nor doing of any particular action by trial judge is necessary in order to signify that he has made his final judgment, but what is required is that there be some manifestation by the judge that it is his intention that the decision is his final act in the case." Paliaga v. Luckenbach S.S. Co., C.A.N.Y.1962, 301 F.2d 403. (emphasis added)

"Whether order of district court is appealable cannot be found by merely determining whether order arises out of proceedings which is ancillary to some other proceeding in another district nor can question of appealability be determined by sole fact that party aggrieved by order is or is not a stranger to major controversy, and ultimate question to be resolved is whether order which person seeks to appeal is final for all practical purposes, in other words, whether party bringing appeal has any other means of obtaining review of claimed erroneous action of district court." Ochsner v. Millis, C.A.6 (Ky. 1967, 382 F.2d 618. (emphasis added)

"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291.

"Under this section providing that Court of Appeals have jurisdiction of appeals from all "final decisions" of the District Courts of the United States, question is not whether court which issued order is through with the case but whether matter below remains open, unfinished, or inconclusive." Holdsworth v. U.S., C.A.Me1950, 179 F.2d 933.

"Our answer to Leatherman is that the district court has an array of procedures that will carry the load as far as pleadings can. First, the district court must insist that a plaintiff suing a public official under § 1983 file a short and plain statement of his complaint, a statement that rests on more than conclusions alone. Second, the court may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity. Vindicating the immunity doctrine will ordinarily require such a reply, and the district court's discretion not to do so is narrow indeed when greater detail might assist. The district court may ban discovery at this threshold pleading stage and may limit any necessary discovery to the defense of qualified immunity. The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts." Schultea v. Wood, 47 F.3d 1433, 1434. (emphasis added)

paragraph 34, page 9 (8 documents)

paragraph 36, page 10 (3 documents)

paragraph 42, page 12 (7 documents)

paragraph 42, page 13 (2 documents)

paragraph 47, page 14 (3 documents)

paragraph 59, page 18 (9 documents)

other paragraphs, miscellaneous documents

"As an initial matter, this Court finds that Plaintiff’s Motion for Leave to File Amended Complaint, filed July 19, 1999, should be granted. However, this Court finds that even accepting the Amended Complaint, Plaintiff can not overcome the immunity issues addressed by certain Defendants in their respective arguments for dismissal and fails to state a claim on which relief can be granted for certain other Defendants addressed in their respective arguments." Magistrate’s Findings, Docket Ref. 49, page 2. (emphasis added).

"Plaintiff objects to the Magistrate's findings and/or conclusions that any of the Defendants' "respective arguments" have actually engaged any of Plaintiff's issues, complaints, arguments, briefs, or exhibits. As the Court can clearly see for itself, Defendants' arguments are generic ' 1983 boilerplate assertions/defenses. As the Court can also see from the motions by nearly all of the Defendants, whether Pro Se or represented by the Texas Attorney General, these motions present the Plaintiff with a disturbing pattern of commonality and uniformity, even in the formatting of the respective documents. Defendants Becky Malone and Betty Davis even appeared Pro Se on Texas Attorney General Stationery at the same time or after they appeared via attorney." Plaintiff's Objections to the Magistrate's Findings. Docket Ref. 50, par. 6 page 2. (emphasis added)

"Officials enjoying absolute immunity to suits for money damages include legislators for acts in their legislative capacity, judges for their judicial acts, prosecutors for acts in initiating and pursuing a prosecution, other executive officers performing prosecutorial or adjudicative functions, and the President of the United States." Elliott v. Perez, 751 F.2d 1477, n 12 (5^th Cir. 1985) (emphasis added)

"Under the qualified immunity standard, government officials are shielded from liability for civil damages as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald. Qualified immunity has been recognized for certain Executive Branch officials, see Butz v. Economou, governors and their aids, and police officers." Elliott v. Perez, 751 F.2d 1477, n 13 (5^th Cir. 1985) (emphasis added)

"Butz also identifies the location of burden of proof. The burden of justifying absolute immunity rests on the official asserting the claim. 438 U.S., at 506. We have not of course had occasion to identify how a Presidential aide might carry this burden. But the general requisites are familiar in our cases. In order to establish entitlement to absolute immunity [457 U.S. 800, 813] a Presidential aide first must show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He then must demonstrate that he was discharging the protected function when performing the act for which liability is asserted." Harlow v. Fitzgerald, 457 U.S. 800 (1982) (emphasis added)

Our answer to Leatherman is that the district court has an array of procedures that will carry the load as far as pleadings can. First, the district court must insist that a plaintiff suing a public official under § 1983 file a short and plain statement of his complaint, a statement that rests on more than conclusions alone. Second, the court may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity. Vindicating the immunity doctrine will ordinarily require such a reply, and the district court's discretion not to do so is narrow indeed when greater detail might assist. Schultea v. Wood, 47 F.3d 1433, 1434

"Chief Justice Rehnquist, writing for the Court (Siegert v. Gilley, 500 U.S. 2265, 111 S.Ct 1789, 114 L.Ed.2d 277 (1991)) explained that the Court had taken the case "to clarify the analytical structure under which a claim of qualified immunity should be addressed." Id at 231, 111 S.Ct at 1793. Reaffirming Gomez, the Court noted that qualified immunity is a defense to be pleaded by a defendant official. When a defendant pleads the defense of qualified immunity, the trial judge should determine both what the current applicable law is and whether it was clearly established when the action occurred. Id." Schultea v. Wood, 47 F.3d 1432

"Because the standards that once governed a plaintiff's allegations regarding qualified immunity will not apply to a plaintiff's reply, the majority must decide what rules, if any, govern the content of such a reply. The court does not answer this question with an independent legal requirement against which district courts can measure a plaintiff's allegations. Instead, the court explains that the district court may: require a plaintiff to reply to [the qualified immunity] defense in detail (n 3). By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply." Schultea v. Wood, 47 F.3d 1437 (5^th Cir. 1995), concurring opinion by Judge Garza. (emphasis added)

"The consequences of the district court's not ordering a reply are unclear. Presumably, a court could not then dismiss the complaint for failure to meet the qualified immunity defense because we no longer require that the plaintiff fully anticipate the qualified immunity defense in his complaint." Schultea v. Wood, footnote 1 to concurring opinion.

"The majority does not hold, nor could it, that the "more than conclusions" pleading standard will apply to a plaintiff's Rule 7(a) reply. It grounds the "more than conclusions" standard in Rule 8(a)(2) requirement that pleadings contain a "short and plain statement" of the asserted claim, but as the majority accurately notes, Rule 8(a)(2)'s "short and plain statement" requirement would not apply to a Rule 7(a) reply. The only rule that governs the content of a Rule 7 reply is Rule 8(e)(1), which requires that "[e]ach averment of a pleading shall be simple, concise, and direct." However, the majority does not "read Rule 8(e)(1) as a relevant limitation upon the content of a Rule 7 reply." Schultea v. Wood, footnote 2 to concurring opinion.

"The Federal Rules of Civil Procedure no not empower the district court to require that a reply be "detailed". Whether "detailed" has independent legal significance or whether the detail required will depend on how the district courts formulate their orders requiring a reply is unclear." Schultea v. Wood, footnote 3 to concurring opinion. (emphasis added)

"The district court's discretion, or lack thereof, also raises the question of how this court, down the road, will review the district court's decision not to order a reply. Rule 7(a) and the court's "may, in its discretion" language suggests and abuse of discretion standard. In contrast, the "if greater detail might assist" limitation seems to involve a question of law, reviewable de novo. How these two aspects combine is unclear. It is also unclear what standard a district court will use to determine when "greater detail might assist." Schultea v. Wood, footnote 4 to concurring opinion.

"[I]f the defendant does plead the immunity defense, the district court should resolve that threshold question before permitting discovery. Harlow, 457 U.S., at 818. To do so, the court must determine whether, assuming the truth of plaintiff's allegations, the official's conduct violated clearly established law." Crawford-El v. Britton 93 F.3d 813 (1998) (emphasis added)

"Of course, the judge should give priority to discovery concerning issues that bear upon the qualified immunity defense, such as the actions that the official actually took, since that defense should be resolved as early as possible." Crawford-El v. Britton 93 F.3d 813 (1998) (emphasis added)

"Finally, federal trial judges are undoubtedly familiar with two additional tools that are available in extreme cases to protect public officials from undue harassment: Rule 11, which authorizes sanctions for the filing of papers that are frivolous, lacking in factual support, or "presented for any improper purpose, such as to harass", and 28 U.S.C.A. § 1915(e)(2) (Supp. 1997), which authorizes dismissal "at any time" of in forma pauperis suits that are "frivolous or malicious." Crawford-El v. Britton 93 F.3d 813 (1998) (emphasis added)

"These various protections may not entirely foreclose discovery on the issue of motive, and the Court of Appeals adopted its heightened proof standard in large part to facilitate the resolution of summary judgment before any discovery at all. Discovery involving public officials is indeed one of the evils that Harlow aimed to address, but neither that opinion nor subsequent decisions create an immunity from all discovery. Harlow sought to protect officials from the costs of "broad-reaching" discovery, 457 U.S., at 818, and we have since recognized that limited discovery may sometimes be necessary before the district court can resolve a motion for summary judgment based on qualified immunity. Anderson v. Creighton, 483 U.S. 635, 646, n. 6 (1987); see also Mitchell v. Forsyth, 475 U.S. 511, 526 (1985)." Crawford-El v. Britton 93 F.3d n. 14 (1998) (emphasis added)

"Probably of greatest importance is that the burden of being able to ascertain what the real facts are in order to determine the defense of immunity is placed squarely on the district judge. The trial judge may not wait on motions or other actions by the parties or counsel." Elliott v. Perez, 751 F.2d 1480 (5^th Cir. 1985) (emphasis added)

"It bears the strongest emphasis that under amended Rule 11 an attorney's signature on a document certifies that, "to the best of his knowledge, information, and belief formed after a reasonable inquiry it is well grounded in fact and is warranted by existing law, or a good faith argument for the extension, modification, or reversal of existing law. ….." F.R.Civ.P. 11. Elliott v. Perez, 751 F.2d 1481 (5^th Cir. 1985).

"The trial judge has several means to determine the specific facts on which plaintiff relies, from which the judge can draw the legal conclusion on the availability of the immunity defense. First, the judge can, and must demand full compliance with Rule 11." Elliott v. Perez, 751 F.2d 1482 (5^th Cir. 1985) (emphasis added)

"Chief Justice Rehnquist, writing for the Court (Siegert v. Gilley, 500 U.S. 2265, 111 S.Ct 1789, 114 L.Ed.2d 277 (1991)) explained that the Court had taken the case "to clarify the analytical structure under which a claim of qualified immunity should be addressed." Id at 231, 111 S.Ct at 1793. Reaffirming Gomez, the Court noted that qualified immunity is a defense to be pleaded by a defendant official. When a defendant pleads the defense of qualified immunity, the trial judge should determine both what the current applicable law is and whether it was clearly established when the action occurred. Id." Schultea v. Wood, 47 F.3d 1432 (emphasis added)

"Existence of both pattern of racketeering activities and enterprise were issues for proof at trial and not bases for pretrial dismissal of indictment under this chapter on ground that enterprise had no recognized existence other that commission of charged predicate acts." U.S. v. Shakur, D.C.N.Y. 1983, 560 F.Supp. 347.

"In prosecution under this chapter, jury is entitled to infer existence of enterprise on basis of largely or wholly circumstantial evidence." U.S. v. Elliott, C.A.Ga 1978, 571 F.2d 880, rehearing denied 575 F.2d 300, certiorari denied 99 S.Ct. 349,439 U.S. 953, 59 L.Ed.2d 344.

"Material issues of genuine fact existed with respect to existence of an enterprise as defined by this chapter, association of defendant printing company with such an enterprise, association of the alleged enterprise with organized criminal activity, the intent and knowledge of defendant concerning the underlying predicate acts and the existence of injury caused by alleged violation of this chapter, precluding summary judgment in favor of defendant in action alleging the kickback scheme." Estee Lauder, Inc. v. Harco Graphics, Inc., D.C.N.Y.1983, F.Supp. 83.

"Complaint which alleged that defendants "established, conducted and participated in an enterprise * * * which engaged in a pattern of racketeering activity and affected interstate commerce" stated cause of action under this chapter sufficient to withstand motion to dismiss." Bunker Ramo Corp. v. United Business Forms, Inc., C.A.Ill.1983, 713 F.2d 1272

"The public goals sought by official immunity are not procedural. Indeed, they go to the very fundamental substantive objectives. To the extent that F.R.Civ.P. 8 conflicts, the trial court must find a way to adapts its procedures to assure full effectuation of his substantive right, since the Enabling Act provides that the rules shall not abridge, enlarge or modify any substantive right." Elliott v. Perez, 751 F.2d 1479, (5^th Cir. 1985), concurring opinion (emphasis added)

"Probably of greatest importance is that the burden of being able to ascertain what the real facts are in order to determine the defense of immunity is placed sparely on the district judge. The trial judge may not wait on motions or other actions by the parties or counsel." Elliott v. Perez, 751 F.2d 1480, (5^th Cir. 1985), concurring opinion.

"Each of the defendants, including Lyford, asserts qualified immunity, the standard for which was explained in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1981): "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Thus, to proceed against a defendant claiming qualified immunity, a plaintiff must demonstrate the existence and violation of clearly established constitutional right; the defendant may then show that he was performing a discretionary function and that his actions would not have been deemed unconstitutional by a reasonable official in his position at the time and the event. Id." Kerr vs. Lyford, 5^th Cir. April 14, 1999. (emphasis added)

"The Racketeering and Corrupt Organizations Act ("RICO) imposes criminal and civil liability upon those who engage in "a pattern of racketeering activity" defined as "any act or threat involving" specified state-law crimes, acts indictable under various specified federal statutes, and other federal offenses. See 18 U.S.C. § 1961(1). Section 1964(c) allows a private party who has been sustained damages from a RICO violation, to recover those damages. See 18 U.S.C. § 1964(c). Appellants' complaint alleges that the Government and private defendants' racketeering activities included mail and wire fraud, which are included among the enumerated acts for a RICO claim. See 18 U.S.C. § 1961(1)." Brown vs. Nationsbank, 5^th Cir. Sept 8, 1999.

"In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that the mail fraud statute did not prohibit schemes that defrauded people of their intangible rights to an honest and impartial government. Following McNally, Congress enacted 18 U.S.C. § 1346,(2) which, in one sentence provided that "[f]or the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services". In 1997, the Fifth Circuit, sitting en banc, held that, by enacting § 1346, Congress intended to protect the intangible right of honest services from wire fraud schemes by state actors. See United States v. Brumley, 116 F.3d 728, 733 (5^th Cir. 1997)("fraud statutes cover the deprivation of intangible rights.") However, prior to the en banc resolution of Brumley, we cannot say that such rights were clearly established by the enactment of § 1346." Brown vs. Nationsbank, 5^th Cir. Sept. 8, 1999. (emphasis added)

"This means that if the official does all that is required under state law, alleging that the services were not otherwise done "honestly" does not charge a violation of the mail fraud statute. The statute contemplates that there must first be a breach of a state-owed duty."

"Stated another way, "honest services" contemplates that in rendering some particular service or services, the defendant was conscious of the fact that his actions were something less than in the best interest of the employer - - or that he consciously contemplated or intended such actions." United States v. Brumley, 116 F.3d 728, 733 (5^th Cir. 1997) (emphasis added)

"Finally, the statute proscribes an actual scheme or artifice to defraud. There is nothing in the informing principles of federalism or legislative history to suggest that the scheme or artifice to defraud elements are drawn from state law. Rather, they are familiar terms of federal criminal law generating and drawing their sustenance from federal common law. These wholly federal elements, read with the jurisdictional elements of mail usage and coupled with the draw upon state law for the definition of service, allow the statute to serve federal interests without supplanting rights of core state governance." United States v. Brumley, 116 F.3d 728, 733 (5^th Cir. 1997).

"Dismissal for failure to state a claim will not be upheld on appeal unless it appears beyond doubt that nonmoving party can prove no set of facts in support of his claim which would entitle him to relief." Fed. Rules Civ. Proc. Rule 12(b)(6) 28 U.S.C.A.

"In reviewing a Rule 12(b)(6) dismissal, this Court accepts "all well pleaded averments as true and view[s] them in the light most favorable to the plaintiff." Rankin v. City of Wichita Falls, 762 F.2d 444,446 (5^th Cir. 1985). The dismissal will not be upheld "'unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"

"Qualified immunity is intended to extinguish some legitimate claims arising under § 1983 which are frivolous or ambiguous in nature, and that is a recognized and accepted consequence of applying the doctrine. But in a case where the plaintiff has alleged a violation of his then-clearly-established constitutional rights and claims serious and demonstrable damages from the official's conduct which was not objectively reasonable, the plaintiff should be entitled to proceed to trial so long as the allegations are sufficiently supported by evidence to survive a motion for summary judgment. "[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law." Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2911 (1978)." Colston v. Barnhart, 5^th July 14, 1998, 96-40634. (dissenting opinion on application for rehearing) (emphasis added)

"[Qualified immunity's] rationale of fairness does not provide any justification for the imposition of special burdens on plaintiffs who allege misconduct that was plainly unlawful when it occurred. While there is obvious unfairness in imposing liability - - indeed, even in compelling the defendant to bear the burdens of discovery and trial - - for engaging in conduct that was objectively reasonable when it occurred, no such unfairness can be attributed to holding one accountable for actions that she knew, or should have known, violated the constitutional rights of the plaintiff. Harlow itself said as much: "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Id. At 818, 819; see also Butz, 438 U.S. at 506 ([I]t is not unfair to hold liable the official who knows or should know he is acting outside the law . . .") Colston v. Barnhart, 5^th July 14, 1998, 96-40634. (dissenting opinion on application for rehearing) (emphasis added)

"We review the dismissal of a complaint for a failure to state a claim for which relief can be granted under Fed.R.Civ.P. 12(b)(6) de novo. Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5^th Cir. 1993). A claim may not be dismissed unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Benton v. United States, 960 F.2d 19, 21 (5^th Cir.1992). For purposes of our review, we must accept the plaintiff's factual allegations as true and view them in a light most favorable to the plaintiff. Campbell v. City of San Antonio, 43 F.3d 973, 975 (5^th Cir.1995)". Khurhana v. Innovative Health Care Systems, Inc, 130 F.3d 143 (5^th Cir. 1997).

"Complaint which alleged that defendants "established, conducted and participated in an enterprise * * * which engaged in a pattern of racketeering activity and affected interstate commerce" stated cause of action under this chapter sufficient to withstand motion to dismiss." Bunker Ramo Corp. v. United Business Forms, Inc., C.A.Ill.1983, 713 F.2d 1272

"Existence of both pattern of racketeering activities and enterprise were issues for proof at trial and not bases for pretrial dismissal of indictment under this chapter on ground that enterprise had no recognized existence other that commission of charged predicate acts." U.S. v. Shakur, D.C.N.Y. 1983, 560 F.Supp. 347.

"In prosecution under this chapter, jury is entitled to infer existence of enterprise on basis of largely or wholly circumstantial evidence." U.S. v. Elliott, C.A.Ga 1978, 571 F.2d 880, rehearing denied 575 F.2d 300, certiorari denied 99 S.Ct. 349,439 U.S. 953, 59 L.Ed.2d 344.

"Material issues of genuine fact existed with respect to existence of an enterprise as defined by this chapter, association of defendant printing company with such an enterprise, association of the alleged enterprise with organized criminal activity, the intent and knowledge of defendant concerning the underlying predicate acts and the existence of injury caused by alleged violation of this chapter, precluding summary judgment in favor of defendant in action alleging the kickback scheme." Estee Lauder, Inc. v. Harco Graphics, Inc., D.C.N.Y.1983, F.Supp. 83.

"A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime's completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself." Salinas v. U.S. 118 S.Ct. 469 (1997).

"A conspiracy may exist even if the conspirator does not agree to commit or facilitate each and every part of the substantive offense. The partners in the criminal plan must agree to pursue the same criminal objective and divide up the work, yet each is responsible for the acts of each others. If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators." Salinas v. U.S. 118 S.Ct. 469 (1997).

"It is the nature of the function performed - - adjudication - - rather than the identity of the actor who performed it - - a judge - - that determines whether absolute immunity attaches to the act." Forrester v. White, 108 S.Ct. 538 (1988),

"The Court observed that "[I]mmunity does not change the character of the judge's action or that of his co-conspirators. Indeed, his immunity is dependent on the challenged conduct being an official act within his statutory jurisdiction, broadly construed." Dennis v. Sparks, 101 S.Ct. 183, 66 L.Ed..2d 185 (1980)

"While rule 12 does not require that the District Court enter findings of fact or conclusions of law when deciding a motion to dismiss, we have required that the district court explain its reasons in sufficient detail to allow this Court to determine whether the district court correctly applied the proper legal rule. See e.g., Wildbur v. Arco Chemical Co., 974 F.2d 631, 6454 (5^th Cir. 1992). When the district court's "reasoning is vague or simply left unsaid, there is little opportunity for effective review.." McIncrow v. Harris County, 878 F.2d 835, 836 (5^th Cir. 1990). "In such cases, we have not hesitated to remand the case for an illumination of the court's analysis through some formal or informal statement of reasons." Lana Ryan Davis v. Bobby G. Bayless, 5^th Cir Nov. 22, 1995, HTML Document: 94-20552-cv0.htm (5^th Cir. Website)

"In this case, we are unable to discern any basis for the district court's dismissal of the Davises' claim for injunctive relief under 1983. Dismissal as to that claim will therefore be reversed and remanded to the district court. We note for the purposes of remand that "judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity." Pulliam v. Allen, 466 U.S. 522, 541-42 (1984); Crane v. Texas, 759 F.2d 412,421 n.11 (5^th Cir.) ("state court judges are not immune from federal suits seeking equitable or declaratory relief"), modified in part on other grounds, 766 F.2d 193 (5^th Cir), cert. Denied, 474 U.S. 1020 (1985)." Lana Ryan Davis v. Bobby G. Bayless, 5^th Cir Nov. 22, 1995, HTML Document: 94-20552-cv0.htm (5^th Cir. Website) (emphasis added)

" We conclude that judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity." Pulliam v. Allen 104 S.Ct 1970 (1984)

"Under Texas law, there are three elements for an abuse of process claim: "(1) that the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process; (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and (3) that damage resulted to the plaintiff as a result of such illegal act." Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 577 (5^th Cir. 1996)

"It was plainly the intention of Congress in adopting this section to provide for injunctive relief against violations of substantive provisions without any requirement of showing of irreparable injury other than injury to public which Congress found to be inherent in conduct made unlawful." U.S. v. Cappetto, C.A.Ill 1974, 502k F.2d 1351, certiorari denied 95 S.Ct. 1121, 420 U.S. 925, 43 L.Ed.2d 395.

"Defendant Richard Ray who was Defendant William Jones’ attorney in the litigation between Plaintiff and Defendant Ray also moves for dismissal for Plaintiff’s failure to state a claim against him. The Plaintiff claims Defendant Ray was involved in a conspiracy in violation of RICO. Again, neither Plaintiff’s Complaint nor Amended Complaint allege facts to support Plaintiff’s allegation against Defendant Ray. This Court recommends Defendant Richard Ray’s Motion to Dismiss be granted." (emphasis added). Docket Ref. 59, Magistrate's Findings, Conclusions and Recommendations, page 5.

"This action arises out of a scheme round and about the 294^th District Court in Canton, Texas ("Wallace's Court") in which one or more of the Defendants attempted to "enrich" themselves by using their relationships in the Court to extort legal fees, moneys, and other valuable things, by the use of fraudulent documents, arguments, and corrupt Court process as weapons for malicious prosecution.". First Amended Complaint, par.1.

"When in 1995 Defendant Ray entered a totally fraudulent Cause against Birnbaum, he was well aware of the availability to him of others round and about Wallace's Court who he knew could and would participate with him to make Birnbaum pay." First Amended Complaint, par. 2.

"Under Texas law there are three elements for an abuse of process claim: "(1) that the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process; (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and (3) that damage resulted to the plaintiff as a result of such illegal act." Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 577 (5^th Cir. 1996)

"In February 1995 Canton Attorney Richard Ray ("Ray") brought suit against me in the name of William B. Jones ("Jones") in the 294^th District Court of Van Zandt County, Texas ("Wallace's Court"), for me having built a dam ("The Dam") on my farm in 1994, and thereby having flooded and damaged Jones. (Exhibit 106)." Affidavit of Udo Birnbaum, page 2.

"I had never built "The Dam". No one else built "The Dam". I never built any dam on my property. No one else ever built any dam on my property. There is nothing even remotely resembling anything like "The Dam" on my property. There never was anything like "The Dam" on my property. "The Dam" does not exist. "The Dam" never existed. (Exhibit 108,111)." Affidavit, continued.

"I now very clearly see, with over four years of hindsight in Wallace's Court, that Ray's claim of "The Dam" described in paragraph VI of his petition (Exhibit 1) was not an accident, not something accidentally left over from failure to delete a paragraph out of a document used as a base for drafting his Petition. I clearly see how Ray intentionally and maliciously created "The Dam" to create himself a cause of action when he knew he had none."

"It took me four years of hands on experience as a Pro Se and four (4) days before a jury to know the full conspiracy of Ray's bringing "The Dam" in 1995, for I now fully know that Ray never intended to show "The Dam" to the process. I now know that Ray knew that he could use the rules of evidence and procedure against me so that I could never defend against "The Dam", because he would never show it!". Affidavit, continued.

"And I now know that he knew that his judges would conspire with him to assist him to do such a thing on me. Here is how it started and how I came to see this:" Affidavit page 3

"While rule 12 does not require that the district court enter findings of fact or conclusions of law when deciding a motion to dismiss, we have required that the district court explain its reasons in sufficient detail to allow this Court to determine whether the district court correctly applied the proper legal rule. See e.g., Wildbur v. Arco Chemical Co., 974 F.2d 631, 6454 (5^th Cir. 1992). When the district court's "reasoning is vague or simply left unsaid, there is little opportunity for effective review.." McIncrow v. Harris County, 878 F.2d 835, 836 (5^th Cir. 1990). "In such cases, we have not hesitated to remand the case for an illumination of the court's analysis through some formal or informal statement of reasons." Lana Ryan Davis v. Bobby G. Bayless, 5^th Cir Nov. 22, 1995, HTML Document: 94-20552-cv0.htm (5^th Cir. Website)

The words "due administration of justice" (18 U.S.C. 1503, Obstruction of Justice) import a free and fair opportunity to every litigant in a pending cause in a federal court to learn what he may learn concerning material facts, and to exercise his option as to introducing testimony as to such facts. Wilder v. U.S. W. Va. 1906, 143 F. 433, 74 C.C.A. 567, certiorari denied 27 S.CT. 787, 204 U.