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Pamela Barnett v. Damon Jerrell Dunn

March 23, 2011

PAMELA BARNETT, PLAINTIFF,
v.
DAMON JERRELL DUNN, ET AL, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This matter came before the court on October 25, 2010, for hearing of defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and plaintiff's motion for a three-judge panel. Plaintiff Pamela Barnett, proceeding pro se, appeared on her own behalf. Attorney Brian Hildreth appeared on behalf of defendant Damon Jerrell Dunn. Attorney Anthony O'Brien appeared on behalf of defendants Debra Bowen and Edmund

G. Brown, Jr. Attorney Yoshinori Himel appeared on behalf of defendant United States Election Assistance Commission. Attorney James Harman appeared telephonically for defendant Neal Kelley. Oral argument was heard, and the parties' motions were taken under submission.

BACKGROUND

Plaintiff originally commenced this action by filing a complaint in the Sacramento County Superior Court in 2010. Plaintiff filed a first amended complaint in the state court action on July 12, 2010, naming as a defendant the U.S. Election Assistance Commission ("USEAC"). (Doc. No. 1 at 3.) On August 17, 2010, defendant USEAC removed the matter to this court pursuant to 28 U.S.C. § 1442(a)(1). (Doc. No. 1.) A flurry of filings followed soon after.

On August 24, 2010, counsel for defendants Debra Bowen and Edmund G. Brown, Jr., filed a motion to dismiss. ("Bowen MTD" (Doc. No. 3.)) On August 27, 2010, counsel for defendant USEAC filed a motion to dismiss. ("USEAC MTD" (Doc. No. 9.)) On September 7, 2010, counsel for defendant Damon Jerrell Dunn joined in the motion to dismiss filed on behalf of defendants Bowen and Brown.*fn1 (Doc. No. 10.) The following day, plaintiff filed a motion to convene a three-judge panel. (Doc. No. 11.) Counsel for defendants Bowen and Brown filed an opposition to plaintiff's motion for a three-judge panel on October 7, 2010. (Doc. No. 18.) That same day, counsel for defendant Kelley joined in the motion to dismiss filed on behalf of defendants Bowen and Brown. (Doc. No. 21.) On October 8, 2010, counsel for defendant USEAC filed an opposition to plaintiff's motion for a three-judge panel. (Doc. No. 22.) That same day, plaintiff filed an opposition to the motions to dismiss filed on behalf of defendants Bowen, Brown and the USEAC. ("Opp'n." (Doc. No. 23.)) Counsel for defendants Bowen and Brown filed a reply on October 15, 2010. ("Bowen Reply" (Doc. No. 24.)) That same day, plaintiff filed a reply to defendants' opposition to her motion for a three-judge panel. (Doc. No. 25.)

PLAINTIFF'S CLAIMS

In her complaint plaintiff alleges as follows. On March 13, 2009, defendant Damon Jerrell Dunn sought to be qualified to vote and be affiliated with the California Republican Party by filing a California Voter Registration Form. At that time, defendant Dunn did not have a valid drivers license issued by the State of California, but instead was licensed to drive in the State of Florida, thereby indicating that his place of domicile was not the State of California and that it would be a violation of the California Election Code for him to register to vote in California as a member of the Republican Party. Based on a public records check, defendant Dunn may also have previously registered to vote in Florida, Texas and Arizona. Defendant Dunn omitted this information from his California Voter Registration Form. Moreover, defendant Dunn's California Voter Registration Form was erroneously dated March 15, 1976. As a result of these discrepancies, defendant Dunn's California Voter Registration Form was invalid, he was not a qualified voter and could not be affiliated with the California Republican Party.

On July 10, 2009, defendant Dunn contacted the Florida Director of Voter Administration and requested that his voter registration records be destroyed. That request was refused. Those records indicate that defendant Dunn had registered to vote in Florida as a member of the Democratic Party.

On November 5, 2009, defendant Dunn filed his Candidate Intention Statement indicating his candidacy for the California Republican Party nomination for Secretary of the State of California in the June 8, 2010 California primary election. On March 9, 2010 defendant Kelley of the Orange County Registrar of Voters certified defendant Dunn's California Voter Registration Form. Despite the fact that defendant Dunn's candidacy was invalid, defendant Kelley, and defendant Bowen, the Secretary of the State of California and a member of the U.S. Election Assistance Commission, allowed defendant Dunn to participate as a candidate in California's June 8, 2010 primary election.

Plaintiff further alleges that defendant Bowen and defendant Brown, the latter then serving as the California Attorney General, previously violated California law, and the public trust, with respect to prior acts of voting fraud. In this regard, plaintiff alleges that in 2008 she requested an investigation into whether then candidate for the office of President of the United States, Barack Obama, was a natural born citizen. Plaintiff therein alleged that President Obama's "birth document" contained "fraudulent elements." Nevertheless, defendants Bowen and Brown refused to investigate plaintiff's allegations.

Based on these factual allegations, plaintiff raises claims for breach of duty, unjust enrichment, multiple violations of the California Election Code, the National Voter Registration Act ("NVRA") of 1993, 42 U.S.C. § 1973gg, et seq. and the Help America to Vote Act ("HAVA"), 42 U.S.C. § 15301, et seq. of 2002. Through her amended complaint plaintiff seeks an order: (1) requiring that defendant Dunn be removed from the November 2010 General Election Ballot; (2) requiring an investigation of document fraud and spoliation; (3) requiring that the qualifications of Barack Obama for the Office of President under the United States Constitution be vetted; (4) barring defendant Dunn from the California General Election; (5) barring defendant Bowen from appearing in California elections for life; (6) barring defendant Brown from appearing in California elections for life; and (7) for punitive civil damages, costs and further relief such as the court deems just and proper. (Notice of Removal, ("Am. Compl." Doc. No. 1), at 1-44.)*fn2

ARGUMENTS OF THE PARTIES

Defendant USEAC seeks dismissal of plaintiff's first amended complaint in this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that this court lacks jurisdiction over the subject matter of this suit and that plaintiff has failed to state a cognizable claim upon which relief can be granted. Specifically, defendant USEAC argues that sovereign immunity jurisdictionally bars any claim against the USEAC. Moreover, counsel for defendant USEAC argues that plaintiff's first amended complaint lacks any cognizable claim against the USEAC and thus fails to state a claim upon which relief can be granted. (USEAC MTD (Doc. No. 9) at 4-6.)

In a similar regard, defendants Brown and Bowen seek dismissal of plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff has failed to state a cognizable claim upon which relief can be granted. Counsel for defendants Brown and Bowen also argues that if defendant USEAC is dismissed that this matter should then be remanded to state court, and that sovereign immunity bars plaintiff's requested relief against defendants Bowen and Brown.*fn3 (Bowen MTD (Doc. No. 3) at 12-24.) As ...


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