IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

Comes now plaintiffs Blackston and Barber and move this Court to reconsider its Order filed on May 21, 1999. In support of the above, plaintiffs state as follows:

This case continues before the court on plaintiff's Affidavit to Recuse Magistrate Judge, pursuant to 28 USC § 636(b)(1)(A). The plaintiffs challenged the Magistrate Judge's Order granting the State defendants 87 days to file a response to the Complaint and Motion for Injunctive Relief.

The District Court's Order assigning the case to a Magistrate Judge is clearly erroneous or contrary to law, pursuant to 28 USC § 636(b)(1)(A). "A judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, ...." 28 U.S.C. § 636(b)(1)(A).

On March 30, 1999, the court referred this case to Magistrate Judge Vanzetta Penn McPherson for action or recommendation on all pretrial matters.

Evidence and past practice shows that the defendants will proceed with their dirty deeds and scoff at the law and the plaintiff's rights under the Consent Decree. This Court, in the interest of justice, cannot allow the defendants an unabated will to violate the Consent Decree, within an unreasonable 87 day delay.

Little doubt remains that the court's actions today will produce injustice in other cases and more particular the present case. The defendants and their attorneys are taught to have an unbridled excuse to commit murder, with the court's blessing. The court's sanction, to allow unscrupulous officials to "commit wrongs against the citizen," is unconscionable in a democratic and free society. The public's confidence in the judicial process is dying an untimely death. Berger v. United States, 255 U.S. 481, 485. ⁽¹⁾

The court places the plaintiffs at an extreme disadvantage by applying unwritten rules of court that are indiscriminately authored and applied to pro se parties. In World Thrust Films, Inc. v. International Family, 41 F.3d 1454, (11^th Cir. 1995), the Eleventh Circuit ruled that "A district court has authority under Federal Rules of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules. There is little doubt in the minds of the plaintiffs that the court will dismiss this case if plaintiffs fail to comply with any court rule. ⁽²⁾

It is axiomatic that "justice delayed is justice denied." Injunctive relief is to be placed on a fast track basis. The Court's actions today allow the defendants an unbridled will and means to cause the plaintiffs severe and unrecoverable harm.

The District Court should consider the plaintiffs' affidavit for injunctive relief in a timely manner and issue findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Snook v. Trust Co. of Georgia Bank of Savannah, 859 F.2d 865 (11^th Cir. 1988)

The present case involves alleged misconduct on the part of state officials that bars the public from essential information necessary to vote and make informed decisions and otherwise defend against tyranny. As previously seem by the defendant's conduct, the state desires to keep the public ignorant through its covert and secret operations. ⁽³⁾

Failure to Answer or otherwise respond in a timely manner is a dispositive issue. The Summons clearly delineates and requires "a response to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service."

"IF YOU FAIL TO DO SO, JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE RELIEF DEMANDED IN THE COMPLAINT." (Emphasis added)

Injunctions are dispositive matters. In USW v. Bishop, 598 F.2d 408 (5^th Cir 1979), the appeals court stated:

Magistrate's Lack of Power to Enjoin

At the outset, although none of the parties has raised the question, we are bound to note that a magistrate lacks power to enter an injunction even in a case where the district court has jurisdiction.

This Court concluded in Kendall v. Davis, 569 F.2d 1330 (5th Cir. 1978), that 28 U.S.C.A. § 636(b)(2) does not authorize entry of a final judgment by a magistrate. See also Cason v. Owen, 578 F.2d 572, 573 (5th Cir. 1978). Rather, the Court observed, § 636(b)(1) provides for close supervision of the magistrate and for district court review of findings and recommendations.

The magistrate's action in LP&L suit was purportedly taken pursuant to two of the Rules Governing Jurisdiction and Authority of United States Magistrates for the Northern District of Alabama promulgated in accordance with 28 U.S.C.A. § 636(b)(4). Rule 2 which, with reference to 28 U.S.C.A. § 636(b)(1)(B), recites the magistrate's powers with regard to dispositive matters, authorizes the magistrate, at the judge's discretion, to hear motions for injunctive relief and to submit proposed findings of fact and recommendations to the judge. Rule 3, which refers to the consent provision of 28 U.S.C.A. § 636(b)(2), permits designation of a magistrate to preside over civil trials by consent of the parties.

It is obvious that the district court cannot by rule confer on a magistrate jurisdiction not permitted by statute. Neither can consent of the parties authorize a magistrate to enter final judgments where power to act in such area is restricted by statute. See Taylor v. Oxford, 575 F.2d 152, 154 (7th Cir. 1978).

Magistrate Taylor did not have the power under 28 U.S.C.A. § 636 to enter the injunction in the contract case even if the district court could have entered it. USW v. Bishop, 598 F.2d 408 (5^th Cir. 1979).

Snook, Supra demands that this case proceed immediately to the next phase without further delay to insure due process and equal protection for the plaintiffs.

Dispositive facts or matters are jural facts, or those acts or events that create, modify or extinguish jural relations. Jural facts are recognized or sanctioned by positive law; embraced within, or covered by, the rules and enactments of positive law. Jural facts are founded in law; organized upon the basis of a fundamental law, and existing for the recognition and protection of rights.

Injunctions and a failure to respond in a timely manner are dispositive matters and based on the defendants "conduct in the past," the district court has "broad power to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future, unless enjoined, may fairly be anticipated from the defendant's conduct in the past." Zenith Radio Corp. v. Hazeltine Research Inc. 395 U.S. 100, 132. (S.Ct. 1969.)

Wherefore, premises considered the plaintiffs request that:

1. The district judge immediately take jurisdiction of this injunctive case and proceed with a preliminary conference, not withstanding a default judgment.

Respectfully submitted

1. Lawyers and the court process are the butt of jokes intended to demean and rein in an "out of control fraternity" incapable of self discipline.

2. Pro se pleadings are to be held to a less stringent standard than pleadings drafted by attorneys. Haines v. Kerner, 404 U. S. 519, 92 S.Ct. 594 (1971); Byrd v. Stewart, 811 F.2d 554 (11^th Cir. 1987)

3. Secret and covert operations by the above defendants, within the Alabama Supreme Court's Advisory Committee on Child Support Guidelines Updates and Enforcement, resulted in the formation of the Consent Decree that the defendants allegedly violate. Unabated, the official misconduct will only escalate to issues that could seriously harm national security and a complete breakdown of confidence in America's courts.

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