Update: Charles Schlund's latest Legal Motions
M. F. Abernathy
Update: Charles Schlund's Latest Legal Motions
Wed Mar 24 15:04:47 2004
216.19.126.55

Charles August Schlund, III
8520 N. 54th Drive
Glendale, AZ 85302
(602) 670-2017
Plaintiff in Pro Per



IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

CHARLES AUGUST SCHLUND, III Plaintiff,

vs.

GEORGE W. BUSH, et al., Defendants


(Honorable Virginia A. Mathis)
CIV 03-1590-PHX VAM


NOTICE AND MOTION FOR ORDER TO SET SCHEDULING CONFERENCE
FOR PARTIES TO MEET AND CONFER (14) DAYS BEFORE THE SCHEDULING
IS HELD TO DEVELOP PROPOSED DISCOVERY PLAN; AND, FOR ORDER
TO SET ASIDE MARCH 15, 2004 ORDER DENYING PLAINTIFF’S MOTION FOR
INJUNCTIVE RELIEF TO PREVENT INTERFERENCE WITH MRI SCANS,
CAT SCANS, X-RAYS IN ORDER TO ESTABLISH EVIDENCE.


Charles A. Schlund, III (“Plaintiff Schlund”) hereby requests the Court to Order a date certain for the Scheduling Conference to be held so that the Scheduling Order may be issued under F.R.C.P. Rule 16(b) and as set forth in F.R.C.P. Rule 26(f). Plaintiff Schlund also requests an order from the Court to set aside its March 15, 2004 Order denying Plaintiff’s February 10, 2004 Motion for Injunctive Relief to Prevent Interference With MRI Scans, CAT Scans, and X-Rays of Plaintiff Schlund which are relevant evidence pertaining to the issues raised in Plaintiff Schlund’s Complaint filed August 15, 2003.


Dated: March 22, 2004 By:
Charles August Schlund, III
Plaintiff in Pro Per





MEMORANDUM OF POINTS AND AUTHORITIES

I. STATEMENT OF THE FACTS


On August 15, 2003, Plaintiff’s Complaint was filed. All Defendants have been served. The Complaint has been properly verified under penalty of perjury and subscribed and sworn on August 15, 2003 by Candace Paxia, a notary public for Maricopa County, Arizona, whose commission expires August 21, 2006. The Verification to the Complaint is signed by Plaintiff Schlund and notarized by Ms. Paxia, according to law. The Complaint is comprised of 64 pages of detailed facts which are of the personal knowledge of Plaintiff Schlund, or to the best of his recollection of the Government’s continuous and ongoing outrageous conduct in violation of his Constitutional and federal rights, clearly supported under the Constitution and federal law (hereinafter referred to as “legal support”). The Verified Complaint sets forth in detail Plaintiff’s personal knowledge of the facts supporting the legal support for the propositions set forth in his causes of action in the Complaint (hereinafter referred to as “factual support”). The Court is requested to take judicial notice of the Verified Complaint under Federal Rules of Evidence, Rule 201(a), (b), and (c) (discussed infra) in conjunction with F.R.E. Rule 1005.


On February 10, 2004, Plaintiff Schlund filed and served his Motion for Injunctive Relief to Prevent Interference with MRI Scans, CAT Scans, X-rays of Plaintiff Schlund, and supporting Points and Authority set forth therein (Doc. 9), hereafter referred to as (“Injunction Motion to Protect Evidence” or “I.M.P.E.”). The I.M.P.E. is concisely articulated with supporting facts under penalty of perjury by the Affidavit of Plaintiff Schlund attached to the Motion, which is incorporated into the Motion, establishing dates, time, individuals involved, agencies involved, the nature of and their acts and conduct relating to Plaintiff and location of activities set forth in the Verified Complaint. Plaintiff Schlund concerning their corrupt or other activities, and was signed and executed under penalty of perjury on February 9, 2004 by Plaintiff Schlund. The Affidavit also references the need for the Court to set, hold a hearing, and grant the Motion to Prevent Interference while Plaintiff awaited for this Court to set up a Scheduling Conference under Rule 16(a).

The I.P.M.E. requesting injunctive relief to prevent interference by Defendants reveals the nature of the governments implant devices, their design purposes, and capabilities and results obtained through use of the implants. The motion cites F.R.C.P. 706, which enables the Court to order independent experts to assist the magistrate in this matter concerning the sophisticated scientific nature of the implants, their design, and workable achievements. It also cites F.R.C.P. 706, that this Court has the power to sua sponte or upon the request by Plaintiff Schlund to retain independent experts, to have an independent expert, magistrate, or referee be ordered by the Court to supervise and videotape the extraction of the said implants from the body of Plaintiff Schlund, similar to any other surgery done today, videotaped at the patient, doctor, or hospital’s request to help prevent claims of medical malpractice. The essence of the I.P.M.E. request is to prevent interference with the MRI scans, CAT scans, and x-rays (evidence) obtained by Plaintiff Schlund and to prevent witness tampering and obstruction of justice, of which the Defendants have a long history of engaging in with relation to Plaintiff Schlund’s criminal, now civil action. Plaintiff was acquitted.

The Defendants were found to be engaged in witness tampering, obstruction of justice, perjury, and other illegal acts and conduct. The court is also well aware that such electronic implantable devices exist and are widely used in the pets of people that are placed under investigation by the government. Plaintiff Schlund knows that the use of implantable electronic devices in people since the 1970’s has been hidden from many judges to cover up the resulting torture and sometimes the resulting deaths of these people at the hands of the courts and the government. In a free and open country like America such information is suppose to be openly available to the public. Plaintiff hopes that America has not yet become Nazi Germany. The presumption of innocents is still the law in America. Plaintiff Schlund is innocent of the crimes he is being investigated for and is being tortured to cover up his innocents.


The Motion to Prevent Interference also cites the controlling law, including but not limited to Siderman DeBlake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992), a fairly recent case binding the courts in the 9th Circuit Court of Appeals to accept the fact that technology, as it advances, is used for intrusion, surveillance, and torture by the government which results in, including but not limited to, obstruction of justice. The case also establishes all [governments] torture their citizens and always deny it as a matter of factual and legal reality, and such is acknowledged by the courts as a legal reality supported by such facts. Those same facts are set forth sufficiently at this stage of the proceedings as set forth in Plaintiff Schlund’s Motion for Injunctive Relief to stop such interference concerning the MRI scans, CAT scans, and x-rays of Plaintiff Schlund. This Court has also been requested under F.R.C.P. Rule 52 to make findings and fact and conclusions of law “tried upon the facts.” The Motion also cites the controlling law that United States magistrates, such as the one here, who are appointed under Sec. 631 of Title 28, Judiciary and Judicial Procedure, are bound under Federal Rules of Evidence, Rule 101, to respect and utilize the Federal Rules of Evidence in the appropriate manner set forth therein. Rule 101, in pertinent part states, “These rules govern proceedings in the courts of the United States and before the…United States magistrate judges…”


The I.P.M.E. also states that F.R.E. Rule 102 requires this magistrate, in pertinent part, to construe the evidence rules in fairness in the administrate and promotion of growth and development of the law of evidence “to the end that the truth may be ascertained in proceedings justly determined” (bold type added by undersigned for emphasis). Plaintiff Schlund cites in his I.P.M.E. that he is a political witness based on solid evidence of, including but not limited to, his personal knowledge, as he was involved with the very people in which he sues but terminated his involvement once he gained personal knowledge of the details of their extensive and deep rooted corruption after he exited his obligation as a United States Marine during the Vietnam era and was recruited by the government for clandestine purposes.


Plaintiff Schlund sets forth in his I.P.M.E., “[A] Plaintiff Schlund’s testimony, standing alone, is sufficient to sustain a verdict.” Allen v. Scribner, 812 F.2d 426, 430, 437 (9th Cir. 1987). His motion states, “There is no doubt his affidavit is testimony as it is signed under oath. Importantly the same rules apply to Plaintiff Schlund’s Verified Complaint. The Complaint is verified according to F.R.C.P. Rule 11, and the verification satisfies the testimony requirement to uphold the facts alleged in this motion and/or the Complaint to be considered in favor of Plaintiff Schlund. Moreover, all that is required is a showing of sufficient evidence, which is set forth in the Schlund Affidavit herewith and his Verified Complaint ‘supportive of the existence of the claimed factual dispute as applied to substantive law of which a fact supports to require a judge or a jury to resolve the differing versions of the truth through a trial.’ First National Bank v. Cities Service Co., 391 U.S. 253, 288-89 rehearing den. 393 U.S. 901 (1968). Plaintiff Schlund has a right to an evidentiary hearing on a I.P.M.E. as part of his due process and equal protection rights which have been firmly acknowledged under longstanding controlling case law such as Verdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992)…” (Plaintiff Schlund’s name is inserted in the Allen v. Scribner quote above for the original name which has been deleted for emphasis by the undersigned.)


On March 17, 2004, the Honorable Virginia A. Mathis, United States Magistrate Judge, issued an Order as follows: “On February 10, 2004, Plaintiff filed a ‘Motion for Injunctive Relief to Prevent Interference with MRI Scans, CAT Scans, X-rays of Plaintiff Schlund.’ (Doc. 9). Plaintiff’s Motion will be denied as it is facially without legal or factual support.” See Order, p. 1, par. 2, lns. 16-21. Plaintiff Schlund satisfied the essential elements set forth in the Siderman DeBlake case by setting forth connecting facts which support the elements of torture, as well as the motives for denial, satisfying the legal and factual support requirements under the law for at least the minimal levels, to establish triable issues of material fact, and his personal knowledge is beyond the conclusionary knowledge of this magistrate’s, and to state otherwise would be ludicrous. It would be ludicrous because this magistrate would have to invalidate all of Plaintiff Schlund’s actual personal experiences involved with said Defendants, and his personal knowledge of their covert activities, of which if she was personally involved, would place her in a suspect class of corrupt governmental employees, possibly necessitating her removal upon her admission and concessions of same from the bench, with no disrespect intended.


II. LEGAL DISCUSSION.


A. REQUEST FOR ORDER TO SET SCHEDULING CONFERENCE.
The March 15, 2004 Order of Magistrate Mathis filed March 17, 2004 does nothing to assist in the setting of a scheduling conference or a scheduling order, required under F.R.C.P. Rule 26 and Rule 16(b), for the parties to meet and discuss the nature and basis of their claims and defenses and the possibilities of a prompt settlement or resolution of the case, to make or arrange for the disclosures required by subdivision (a)(1) and to develop a proposed discovery plan. Plaintiff Schlund does acknowledge from the Court’s Order that F.R.C.P. Rule 26(f) requires: “The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging and being presented or being represented at the meeting, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the Court within (10) days after the meeting a written report outlining the plan.” F.R.C.P. Rule 16(a) provides that the Court may direct the attorneys for the parties and Plaintiff Schlund to appear before it for a conference or conferences before trial for such purposes, as (1) expediting the disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of a lack of management; (3) discouraging wasteful pre-trial activities; (4) improving the qualify of the trial through more thorough preparation; and (5) facilitating the settlement of the case. The magistrate is hereby requested under Rule 16(b) to schedule a Scheduling Conference, by telephone, mail, or other suitable means, and enter a Scheduling Order that limits the time to: (1) join of the parties and to amend the pleadings, (2) file motions, and (3) to complete discovery. Plaintiff Schlund acknowledges that under Rule 16(b) that, “The Order shall issue as soon as practicable but in any event, within (90) days after the appearance of a Defendant and within (120) days after the Complaint has been served on a Defendant,” such is the case here.


August 15, 2003,the Complaint was filed (Doc. 1). On January 15, 2004, Plaintiff Schlund filed all of the Return of Services on said Defendants (Doc. 6). Although it has only been sixty (60) days, it must be entered within (90) days after the appearance of the Defendant (Defendants have not appeared yet) and within (120) days after the Complaint has been served on the Defendants. Plaintiff Schlund hereby requests the Court to issue its Scheduling Order and set a trial date for the discovery and disclosures under Rules 26(a) and 26(e)(1) and to assist in the scheduling and planning of the case for trial. Attached hereto is Plaintiff Schlund’s Proposed Discovery Plan required under Rule 26(f), but the “joint responsibility” requirement under the Rule does not activate until the Defendants have appeared. Defendants have not appeared in the case despite they were served (Doc. 6). At this junction, it is premature for Plaintiff Schlund to notice the default of said Defendants under F.R.C.P. 55.


In the establishing of the Rule 26(f), the Court’s assistance in developing a proposed discovery plan requires it to reconsider its Order of March 17, 2004 denying Plaintiff’s Motion for Deposition Prior to Discovery Meeting Under F.R.C.P. Rule 26(f) providing for the deposition of Defendant Schlund, which was based on his continuing ill-health directly resulting from the conditions of torture from which he has been suffering as a political witness at the hands of said Defendants (Doc. 10). Therefore, Plaintiff Schlund immediately requests, established by Order, a specific date setting the Scheduling Conference or/and Scheduling Order as provided for under Rule 26(f) and 16(b) as alluded to in its March 17, 2004 Order and reinstate the Motion for Deposition be granted and the deposition be set no later than, April 15, 2004 at 10:00 a.m., with further designation as to the location for the deposition submitted in writing by Plaintiff Schlund.


Because Plaintiff Schlund has filed his I.P.M.E. (Doc.’s 9 and 10), which established he is under tremendous pain and suffering through the torture activities of said Defendants, it does not serve the ends of justice and fair play for the Court to issue orders which would delay his expedited discovery attempt to prevent the torture, as denoted above (Doc.’s 9 and 10). Plaintiff is seriously concerned that Magistrate Virginia A. Mathis (“Magistrate Mathis”) may at this junction have become tainted, biased, and prejudiced to Plaintiff’s legitimate claims due to her premature statements set forth in her March 17, 2004 Order referencing Plaintiff Schlund’s I.P.M.E. (Doc. 9 and impliedly 10) “will be denied as it is facially without legal or factual support.” March 17, 2004 Order, par. 2, lns. 17-21. Magistrate Mathis could have simply denied the Motion based on the F.R.C.P. Rule 26(f) provisions to meet and confer and establish a discovery plan rather than voice her premature, unobjective, lack of impartiality, biased, prejudiced, and without any legal or factual


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