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Roger
Roger, Attorney
Category: Legal
Satisfied Customers: 26331
Experience:  Litigation Attorney
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A federal magistrate judge has moved that my case should be

Customer Question

A federal magistrate judge has moved that my case should be summarily dismissed and I have 17 days to reply. The dismissal was based on an affadavit made by the defendant(the affadavit is a lie). It was also based on a deposition I made to the defendant's lawyer,that I have never read or approved by signing.There is a serious misinterpretation of my testimony made by the defendants' lawyer. What are the odds of getting this decision reversed? How should I in your opinion proceed? Can you give some advice?There was a search of my house by a police officer.I have maintained since the start that he used trickery and threats to get me to allow him into my house whereas he says I permitted him "no questions asked" to search. He also made me remove a security camera from inside if my storage area window.Later I was told by this officers supervisor to replace the camera where it was.
Submitted: 3 years ago.
Category: Legal
Expert:  Roger replied 3 years ago.

Hi - my name is XXXXX XXXXX I'm a litigation attorney here to assist you.

 

The odds of getting this reversed is not very good as it is really difficult to overturn a decision. However, in order to do this, you will need to file a response and point out the fact that the testimony provided in the affidavit and filed court documents is incorrect and provide your version of the facts.

 

You could also claim that the search was illegal.

Customer: replied 3 years ago.
In the decision the judge states," As the plaintiff did not include any sworn testimony or affadavits in his response and surreply,this transcript request by the court has allowed the plaintiff to contest summary judgement".(This statement was made in regard to"the defendants filed a copy of the plaintiff's deposition testimony). Does this mean I can also now send a sworn affadavit to refute the defendant's affadavit?Also the title of the document is Propsed Findings and Recommendation.Is this actually a judgement?One other thing.-on the Background it states the"plaintiff's house was apparently next to the home shared by the Smith family."This statement is completely incorrect. My 605 Buckeye residence is nowhere near the Smith family's residence but my 605 Elder
Street house is.There has been from the start alot of confusion in regard to this fact and it is a significant mistake because the buckeye house is so far from the Smith house.This kind of mistake makes the decision look unprofessional.
Expert:  Roger replied 3 years ago.
I would recommend providing rebuttal affidavits.

Also, the proposed findings is not the judgment, it is what the other party has tendered as its proposed findings. Until the judge signs a judgment, nothing is final.
Customer: replied 3 years ago.

So the proposed findings are actually pretty much the work of the defendant's lawyer?Not so much the judge?It sounds like the federal magistrate might be giving me another chance with the additional filing opportunity.Is that a correct interpretation? That would explain the continue of using the wrong address.I was surprised a federal magistrate would be so sloppy.

The defendant's lawyer can't even get the addresses and locations of my properties correct.also the fact that I have never read or signed the deposition for correctness. Should i make an affadavit to this fact or is it not important?Thank you and I would like to stay with you for advice until "the fat lady sings"it's over.Is that ok with you sir?Are the odds respectable for getting the proposed actions stopped if I start gathering affadavits?Last question.

Expert:  Roger replied 3 years ago.
It sounds like the judge has agreed to give you a chance to address the summary judgment, file affidavits, etc.

However, the only way to know for sure is to get the judge's input. I would recommend that you contact the judge's clerk and ask for a conference call with the judge and the other lawyer. I would then simply ask the judge to tell you where things are and what needs to happen next.

This question will remain open, so you can contact me in the future if necessary.
Customer: replied 3 years ago.
do you know offhand of any case where a police dept. was found liable for not protecting someone from a stalker who followed through with an assault?
Expert:  Roger replied 3 years ago.
This would be a claim for negligence against the law enforcement officer and agency for failing to take proper care and attend to their duties.
Roger, Attorney
Category: Legal
Satisfied Customers: 26331
Experience: Litigation Attorney
Roger and 14 other Legal Specialists are ready to help you
Customer: replied 3 years ago.
today when i called the magistrate judge's office the clerk told me that the case was no longer in the magistrate judge's care bur after the recommendation for a dismissal ,the PFR was passed on to the judge who I guess makes the final decision. Can I still send rebuttal affadavits at this point?
Expert:  Roger replied 3 years ago.
A district judge handles dispositive motions - like summary judgment. It should not effect your right to file your response.
Customer: replied 3 years ago.
i have recharged my acct. so I can be billed for 28.00- I have been granted an additional 3 weeks to offer rebuttals to a fed. magistrate judges PFR to summarily dismiss my case. It has been said also on the form that Discovery was over by Oct.29,2010. I have an expert witness report and another witness who was a former police officer who have investigated my entire case. I mentioned both witnesses in former motions to the court.These 2 witnesses have only just been able to complete their reports because they were obstructed by the police department being sued by the said departments continual refusal to comply with FOIA. i have statements from both of these witnesses in regard to this. will the rebuttal affidavits be turned down because they would be considered after discovery. Even if all of these witnesses were mentioned in previous motions to the court?
Expert:  Roger replied 3 years ago.
If these witnesses were not disclosed in discovery as expert witnesses, the court is not going to allow their testimony. Federal courts are extremely stringent on time lines and deadlines, so if these people weren't designated, their testimony is going to be inadmissible.
Customer: replied 3 years ago.
But I can use the info in the expert witness report to make my rebuttal as long as I stick to the central 3 issues of why I disagree with the lower courts' findings. The magistrate court is a lower court correct? what about the other party refusing to give out the info? will i have grounds to appeal the decision or file a new lawsuit. also the other party failed to identify the party involved by the deadline of August 2,-they apologized to the court for being late saying that it was due to a name in the records being misspelled.If I have mentioned the other parties in other motions can I use their affidavits?
Expert:  Roger replied 3 years ago.
No, the people would have to testify about their own reports. The only way to have the documents introduced is through testimony of the creator.
Roger, Attorney
Category: Legal
Satisfied Customers: 26331
Experience: Litigation Attorney
Roger and 14 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

So if none of the other witnesses were deposed by the opposing party their affadavits are inadmissable?

Customer: replied 3 years ago.
did you receive the paypal?
Expert:  Roger replied 3 years ago.
It doesn't matter about depositions; what matters is whether these people were disclosed in discovery. If the people were not designated in discovery as a witness or expert witness, they can't testify at trial.
Customer: replied 3 years ago.
I definitely mentioned them as a witness in my early motions but I didn't specifically designate them as an expert witness rather as an investigator,I don't know if that would be enough,I could try I guess I'm sure the judge will let me know?In regard to the witness who claimed he was obstructed by the defendants in his FOIA requests,would that be a reason for protest or another appeal or refiling? Also and last question(greatly appreciate your patience with me sir) Do you know of any court cases where a policeman said that a person left them (the police) search their home by consent where the plaintiff maintained they did let the officer in because they were being yelled at and threatened by the police officer.Can you cite the case if possible?
Expert:  Roger replied 3 years ago.

You can try to get this in, but if the other side objects, the judge is likely to exclude this.

 

I don't know of any court cases off hand from West Va. that deals with this exact issue. However, I can look into it and report back.

Customer: replied 3 years ago.
ok please if you can!
Expert:  Roger replied 3 years ago.

Here's the ONLY reported West Va. case dealing with a warrantless search procured by coercion or duress:

 

State Of West Virginia v. Robert Lee Craft, 165 W. Va. 741 (1980):

 

Whether a consent to a search is in fact "voluntary" or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances, and while knowledge of the constitutional right to refuse consent to search is one factor, such knowledge is not an essential prerequisite which must be proven by the government as the sine qua non of an effective consent. Where the State relies upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given.

 

 

Customer: replied 3 years ago.
this is excellent sir-also I forgot to mention at my deposition before the discovery date-my witness videotaped the deposition and believes that there is an area of interpretation in question-specifically my witness believes a video shows gestures and voice intonations whereas a written depo dosen't-
Can I use an affidavit from this witness and his organization since he was a rep at the deposition ?
Expert:  Roger replied 3 years ago.

Affidavits are not admissible at trial because the other party has no right to cross-examine the affidavit.

 

However, this person can testify live at trial about this issue.

Customer: replied 3 years ago.
but can I use an affidavit from this person as a rebuttal against the PFR Summary Judgement within of course the 18 days I,ve been given? Seeing as this person was at the deposition and ID'd as a witness?
Expert:  Roger replied 3 years ago.
Yes, you can use the affidavit in response to a motion for summary judgment. That is permitted under the rules of civil procedure.
Customer: replied 3 years ago.
I just had after 14 mos. a Summary Judgement against me.The judge ordered a dismissal from the docket. It doesn't say dismissed with prejudice. The judge said that although the officer had "no probable cause" to enter my house I permitted him to enter. I strongly disagree with this decision as I was threatened with arrest twice by this same although in his affadavit he says I "invited him in". Also I was arrested for battery when the people who instigated the search attacked me in my front lawn. The charges were dismissed by the DA and I sued the police dept. In the Summary Judgement against me the court conceded that I was attacked on my own property by an ind. who had been harrasing me for over a year. The court said that because both the officer and the magistrate signed the arrest there was probable cause. Can I appeal this summary judgement since it is ridiculous. How? In WV Castle doctrine states a person can use force including deadly force to stop an agressor. A witness saw the agressor following me to my house and exiting his car and fighting me on my front lawn. My lawyer and an expert witness provided statements that this was self -defense and not battery . The judge Joseph Goodwin "pooh-poohed" their statements. The judge also refused to permit a copy of the video-deposition made by my expert witness and refused to summon some state police records where I called to protest the house search. goodwin said they were "third party info and they were outside of the time period for the discovery. I had no acess to these 2 bits of testimony until about a week after move for the summary judgement. Also the opposing lawyer took bits and pieces from his typed depo and made it seemed like i agreed to let the officer in. he forgot to mntion the threats of arrest if I didn't let him in. Also do i have strong appeal case on the Castle defense? even the court admits the attack occurred in my parking space and front yard on a dead-end street . The DA threw it right out after the police dragged me to court 3 times. The police on the 3rd try tried to get me sign-off prosecuting them when they knew it was about to be dismissed.
Expert:  Roger replied 3 years ago.

You can appeal the summary judgment by filing a notice of appeal within 30 days of the entry of the order granting summary judgment.

 

Summary judgments are very difficult to win, and having one overturned on appeal is equally difficult.

 

Without reviewing all of the motions, arguments, facts, etc., I can't tell you how much of a chance you'll have on an appeal under the Castle doctrine, but I can't give you a percentage of chance.

Customer: replied 3 years ago.
I can appeal on Castle doctrine is that correct? since even the judge finally admitted that the attack was at my house by a person who had no right to be there.-Also-i can appeal the second because they wouldn't let me admit the phone call to the State Police and the videoed deposition?Also the affadavit where i stated the officer threatened me? another thing there was no mentionof having the right to appeal this within 30 days-do they have to tell you this or is it understood? As a matter of fact there was no mention of any right to appeal in the judgement. will the appeal go to the same judge do you know?The judge is a known consevative and his recusal list is lenghty. In my dealings i have dealt with some WV media which is on his recusal list but not to any great extent.
Expert:  Roger replied 3 years ago.

The Castle Doctrine allows you to use reasonable force on your property. Thus, it appears that this statute would apply here: http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=55&art=7&section=22

 

The court is not required to inform you of your appeal rights.

Customer: replied 3 years ago.
Kirk,my computer has the slows-i tried to pay out 20.00 and I'll keep trying so is 20 ok?
Expert:  Roger replied 3 years ago.
Sure - that's fine. I really appreciate it.
Customer: replied 3 years ago.
Kirk I just tried to add money to pay you and the justanswer pay thing keeps rejecting it. It happens frequently and they really need to get it fixed. I will keep plugging and soon I know it will take. I will keep you posted! I'm sure you're aware of how the just answer pay thing screws up frequently. I will contact you tommorrow. /thanks Doug.
Expert:  Roger replied 3 years ago.

Thanks.

 

I'm not really aware of what goes on with customer service, including payment.

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