Wrongdoer Lisa C. Rambo responds to federal Lawsuit (Macon, Georgia)

__________________________________________________________________ William D. NeSmith, III, Attorney at Law

P.O. Box 295 Americus, Georgia 31709 (229) 931-4427 *** (229) 380-0279 fax

[email protected]

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

DANN SLAYDEN CROSS III, MBA, *

DR. SHARON HARVEY CROSS, PsyD., *

Their sons F.C., R.C. and D.C., *

*

Plaintiffs (propria persona), * CIVIL ACTION NO.: 5:14-CV-006

*

vs. *

*

LISA RAMBO, Georgia Southwestern *

Judicial District Juvenile Judge and * JURY TRIAL DEMANDED

her unnamed spouse, et al. in their *

individual capacity, *

*

Defendants. *

*

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

COME NOW, Defendants JUDGE LISA C. RAMBO and her unnamed spouse and

file this Motion to Dismiss the above-styled action. These Defendants show this Court that

Plaintiffs Complaint fails to state a valid cause of action or justiciable claim against them in

any manner whatsoever.

Plaintiff Dann Slayden Cross and Plaintiff Sharon Harvey Cross, both non-lawyers,

are representing their three children in this court action. The unlicensed practice of law is a

crime and contrary to case law and Georgia statutory law. All claims filed on behalf of the

children, F.C., R.C. and D.C. must be dismissed.

Further, the unnamed spouse of Defendant Lisa Rambo has not been served with

any complaint and summons, nor has he been asked to waive formal process of service. The

Case 5:14-cv-00006-CAR Document 46 Filed 03/08/14 Page 1 of 46



[email protected]

unnamed spouse of Defendant Lisa Rambo remains unnamed and as such should, along

with Defendant Rambo, be dismissed. The Defendants Brief in Support of Their Motion to

Dismiss is attached hereto and incorporated herein with this Motion to Dismiss.

WHEREFORE, for the reasons contained herein and in their Brief in Support of

Their Motion to Dismiss, Plaintiffs Complaint against Defendant Lisa Rambo and her

unnamed spouse pray that said complaint be dismissed for failure to state a claim.

Respectfully submitted this 8th day of March, 2014.

/s/ William D. NeSmith, III

WILLIAM D. NESMITH, III

Georgia Bar No.: 535792 Attorney for Defendants

P.O. Box 295 Americus, Georgia, 31709 229-931-4427 229-380-0279 fax [email protected]




[email protected]

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the within and

foregoing Motion to Dismiss For Failure to State a Claim and Brief in Support of

Defendants Motion to Dismiss for Failure to State a Claim by electronic filing

through the CM/ECF System in accordance with the United States District

Court Rules, as follows:

Dann Slayden Cross III, pro se

[email protected]

Sharon Harvey Cross, pro se

[email protected]

David V. Johnson, Esq.

[email protected]

Kevin P. Race, Esq.

[email protected]

Brett Williams, Esq.

[email protected]

Kim M. Jackson, Esq.

[email protected]

Bryan M. Grantham, Esq.

[email protected]

Roger E. Harris, Esq.

[email protected]




[email protected]

Shannon Shipley Hinson, Esq.

[email protected]

Tim Lewis, Esq.

[email protected]



WILLIAM D. NESMITH, III

Georgia Bar No.: 535792 Attorney for Defendants

P.O. Box 295 Americus, Georgia, 31709

229-931-4427

229-380-0279 fax [email protected]




[email protected]

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

DANN SLAYDEN CROSS III, MBA, *

DR. SHARON HARVEY CROSS, PsyD., *

Their sons F.C., R.C. and D.C., *

*

Plaintiffs (propria persona), * CIVIL ACTION NO.: 5:14-CV-006

*

vs. *

*

LISA RAMBO, Georgia Southwestern *

Judicial District Juvenile Judge and * JURY TRIAL DEMANDED

her unnamed spouse, et al. in their *

individual capacity, *

*

Defendants. *

*

BRIEF IN SUPPORT OF DEFENDANTS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

COME NOW, defendants JUDGE LISA RAMBO and her unnamed spouse, and in

support of their motion to dismiss the plaintiffs complaint, shows this Court the following:

STATEMENT OF FACTS

On January 6, 2014, the plaintiffs, Dann Slayden Cross, III MBA, Dr. Sharon

Harvey Cross, PsyD., and their sons, F.C., R.C., and D.C. (hereinafter individually and

collectively as Plaintiffs) filed their complaint pursuant to 42 U.S.C. 1983. In said

Complaint, Dann Slayden Cross and Sharon Harvey Cross seek damages on behalf of

themselves and their children, for alleged violations of their Fourth and Fifth Amendment

rights and violation of Public Trust Powers afforded them under the United States

Constitution. The Plaintiffs alleged that Lisa Rambo, acting under color of state law and




[email protected]

exercising public trust powers belonging to an office styled as Juvenile Court Judge

deprived all of the Plaintiffs of their Fourth Amendment by unreasonable search and seizure

of person and papers, due process of law and false imprisonment. (Complaint 16; 142-

144; 145-147; 148-149). Plaintiffs Complaint is completely devoid of any allegations

whatsoever, against the unnamed spouse of Defendant Lisa Rambo, other than to allege

that any spouse of any defendant in the instant civil action must be joined as a defendant

based on precepts of coverture, marriage, accessory contract, and division of spoils as well

as abundant stare decisis upon the subject(s) of accessory, tontine wagering, and

misprision. (Complaint 28).1

At all relevant times contained in Plaintiffs complaint, Plaintiffs were residents of

Macon County, Georgia and live at a confidential physical address. (Complaint 1).

Plaintiffs complaint arises from an initial incident that occurred at The Doctors Hospital in

Augusta on or about December 5, 2012. (Complaint 32). On December 4, 2012, plaintiffs,

after seeking treatment at another hospital, brought their son, F.C., a two year old child, to

The Doctors Hospital in Augusta, Georgia with serious burns to his feet. (Complaint 29-

32)(Rambo Affidavit 5). On that date, after F.C. was examined by a physician, and

Plaintiffs were informed that F.C. was scheduled for surgery on the morning of December

5, 2012. The Plaintiffs refused to allow F.C. to be immunized for Tetanus. Said

immunization was necessary prior to any medical treatment by the hospital. (Complaint

1 These Defendants aver that these allegations do not give rise to a colorable action under 42

U.S.C 1983 or any other type of civil action based upon Plaintiffs facts.




[email protected]

32, 37)(Rambo Affidavit 6). According to the treating physician, if F.C. was not

immunized and contracted Tetanus, there was a 25% chance that he would die. (Rambo

Affidavit 7).

On December 5, 2012, Defendant Lisa Rambo, as Juvenile Court Judge for Macon

County, Georgia, received a telephone call from the law office of Patrick Eidson. Mr.

Eidson is a Special Assistant Attorney General representing the Macon County Department

of Family and Children Services and is a defendant in this civil action. Mr. Eidson was

seeking an ex parte emergency shelter care order based on deprivation of the Crosss minor

child, F.C. Based on information provided to Judge Rambo from Defendant Eidson which

was derived from the treating physicians for F.C., she signed an Order for Shelter Care.

Said order temporarily removed custody of F.C. from his parents and allowed F.C. to

receive needed medical care. Further, the Order informed F.C.s parents that a 72 hour

hearing was set by the court to provide the parents with their due process rights and the due

process rights of the minor child. (Rambo Affidavit 4, 8).

At the 72 Hour Hearing, Judge Rambo returned the minor child, F.C., to his parents

requiring Plaintiffs Dann Slayden Cross and Sharon Harvey Cross to:

1. Successfully complete Parenting classes and immunization

education.

2. Comply with all home schooling regulations as required by the

Macon County Board of Education.

3. Ensure that F.C. receives all medical attention recommended by

any medical provider.




[email protected]

4. Sign any releases for information requested by the Macon County

Department of Family and Childrens Services.

5. Cooperate with the Macon County Department of Family and

Childrens Services and any related agencies.

(Rambo Affidavit 11).

On March 26, 2013, the Macon County Department of Family and Childrens

Services filed a Petition to Dismiss Protective Order, with the Juvenile Court of Macon

County, Georgia. The petition alleged that Dann Slayden Cross and Sharon Harvey Cross

had complied with the previous order of the Juvenile Court and sought to dismiss the

Shelter Care Order entered by the court on December 5, 2012. A hearing was held on April

17, 2013 and the petition was granted by the Court and the Protective Order was dismissed.

(Rambo Affidavit 12).

At all times relevant to the Plaintiffs complaint, Defendant Lisa Rambo was acting

in her official capacity as a juvenile court judge and at no time acted in her individual

capacity. (Rambo Affidavit 16).

Since the return of F.C. to his parents and the dismissal of the Shelter Care Order,

Judge Rambo has been inundated with bizarre and at times, nonsensical pleadings and

other documents, all of which identify Defendant Rambo as a judge and all appear to

complain of her actions as a judge, not an individual. (Rambo Affidavit 13, 14, 15).




[email protected]

ARGUMENT AND CITATION OF AUTHORITY

I. Defendant Lisa Rambo is protected by absolute judicial immunity from

being sued in a civil matter.

It is undisputed in the Plaintiffs complaint and all other evidence before this Court

that Defendant Lisa Rambo, at all times relevant to Plaintiffs complaint, was acting as a

juvenile court judge for the Southwestern Judicial Circuit (Rambo Affidavit

170)(Complaint passim).

The Supreme Court held in Pierson v. Ray, 386 U.S. 537 (1967) that judges are

protected by absolute immunity when they act in a judicial capacity, even if they act

unconstitutionally. The Court relied on the background of common law immunity when 42

U.S.C 1983 was enacted. In Pierson, a state court judge was ruled absolutely immune from

damages liability under section 1983 even though he had convicted the plaintiff under an

unconstitutional statute. For immunity purposes, it did not matter even if the judge did so

knowingly.

In, Wilson v. Bush, 196 Fed Appx. 796; 2006 U.S. App LEXIS 22961, (2006)

on an appeal from the United States District Court for the Middle District of Georgia, the

11th Circuit Court of Appeals affirming the District Court, held that:

The doctrine of judicial immunity entitles a judge to absolute immunity from damages for actions taken in a judicial capacity unless the action was taken in

the "clear absence of all jurisdiction." Bolin v. Story, 225 F.3d 1234, 1239 (11th

Cir. 2000). To determine if an action is within a judge's judicial capacity, we

look to "the nature of the act itself, i.e., whether it is a function normally

performed by a judge, and to the expectations of the parties, i.e., whether they

dealt with the judge in his judicial capacity." Mireles v. Waco, 502 U.S. 9, 12,

112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991) (citation omitted). A judge does

not act in the "clear absence of all jurisdiction" when he acts erroneously,




[email protected]

maliciously, or in excess of his authority, but rather only when he acts without subject-matter jurisdiction. Dykes v. Hosemann, 776 F.2d 942, 947-48

(11th Cir. 1985). The Supreme Court has held that: Few doctrines were more solidly established at common law than the

immunity of judges from liability for damages for acts committed within their

judicial jurisdiction . . . . This immunity applies even when the judge is

accused of acting maliciously and corruptly, and it is not for the protection

or benefit of a malicious or corrupt judge, but for the benefit of the public,

whose interest it is that the judges should be at liberty to exercise their

functions with independence and without fear of consequences. Pierson v.

Ray, 386 U.S. 547, 553-54, 87 S. Ct. 1213, 1217-18, 18 L. Ed. 2d 288 (1967)

(internal quotations omitted). (Bush at 798)(emphasis added).

In Leonard v. United States District Judge Kenneth Marra, 2005 U.S. Dist. LEXIS

22357, this Honorable Court, citing previous authorities, opined [c]laims against

judges are generally barred by the judge's absolute immunity from liability for

judicial acts. Stump v. Sparkman, 435 U.S. 349, 356-57, 55 L. Ed. 2d 331, 98 S. Ct.

1099 (1978); Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir. 1996). The

Supreme Court has recognized two circumstances in which a plaintiff may overcome

a defendant's judicial immunity: "First, a judge is not immune from liability for

nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. . . .

Second, a judge is not immune for actions, though judicial in nature, taken in the

complete absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 11-12, 116 L. Ed.

2d 9, 112 S. Ct. 286 (1991) (citations omitted).

A juvenile court judge has subject matter jurisdiction and exclusive original jurisdiction

over matters involving, inter alia, alleged child deprivation. See O.C.G.A. 15-11-28. As

previously stated, there is not a scintilla of evidence that Judge Lisa Rambo acted in a non-

judicial capacity or that she did not have subject matter jurisdiction over the issue of

deprivation of the minor child, F.C. and his parents. Even a casual reading of Plaintiffs




[email protected]

Complaint, and the numerous other documents attached to Judge Rambos Affidavit as

Exhibits clearly show that every complaint and allegation against this Defendant are clearly

addressing Judge Rambo in her judicial capacity. Further, Plaintiffs entire complaint

against Lisa Rambo and all of the defendants in the instant case, all arise from the Shelter

Care Order that she signed as a juvenile court judge.

Absolute judicial immunity is intended to protect the judicial process. If judges have

to be concerned that rulings in civil or criminal cases would likely generate section 1983

claims against them, this would have an adverse effect on a judges independent decision-

making. In addition, section 1983 claims against judges would necessarily involve the re-

litigation of earlier cases. Further, these Plaintiffs had a readily available remedy. They

could have sought an injunction from a superior court while they were in Richmond County

seeking medical treatment for F.C., and they certainly could file an appeal if the injunction

was not granted.

It is clear, from the entire record before the court, that all of the allegations against

Defendant Lisa Rambo involved her acting as a juvenile court judge and in a court that had

exclusive original jurisdiction of the matters complained of in Plaintiffs Complaint. Judge

Lisa Rambo at all times had absolute judicial immunity in the instant case and should be

dismissed from this action with prejudice.

II. Plaintiffs Complaint Contains No Justiciable Claims Against the Unnamed Spouse of Defendant Lisa Rambo.

Plaintiffs Complaint is completely devoid of any allegations linked to or directed at

the unnamed spouse of Defendant Lisa Rambo other than a mere allegation that any spouse

of any defendant to the instant civil action should be joined as a defendant based on




[email protected]

precepts of coverture, marriage, accessory contract, and division of spoils as well as

abundant stare decisis upon the subject(s) of accessory, tontine wagering, and misprision.

(Complaint 28) These bare allegations, in and of themselves, do not constitute a claim

under section 1983. To prevail in a claim under section 1983, these Plaintiffs must prove

two critical points: 1) a person subjected the Plaintiffs to conduct that occurred under color

of state law, and 2) this conduct deprived these Plaintiffs of rights, privileges, or immunities

guaranteed under federal law or the U.S. Constitution. See 42 U.S.C. 1983. Plaintiffs

Complaint is silent to any allegation that any unnamed spouse acted under color of state

law or deprived any of the plaintiffs of rights, privileges, or immunities guaranteed under

federal law or the U.S. Constitution. The Plaintiffs have failed in every way to allege any

justiciable claim under section 1983. Further, the unnamed spouse of Defendant Lisa

Rambo has never been served with Plaintiffs Complaint. Plaintiffs Complaint against the

unnamed spouse of Defendant Lisa Rambo should be dismissed with prejudice.

III. Plaintiff Dann Slayden Cross and Sharon Harvey Cross are not licensed to

practice law in the state of Georgia and therefore cannot represent their

three minor children in their complaint against Lisa Rambo and her

unnamed spouse.

Georgia law prohibits the unlicensed practice of law within the state of Georgia.

O.C.G.A. 15-19-50 states:

The practice of law in this state is defined as: (1) Representing litigants in court and preparing pleadings and other

papers incident to any action or special proceedings in any court or other judicial body;

(2) Conveyancing;

(3) The preparation of legal instruments of all kinds whereby a legal right




[email protected]

is secured;

(4) The rendering of opinions as to the validity or invalidity of titles to real or personal property;

(5) The giving of any legal advice; and

(6) Any action taken for others in any matter connected with the law.

O.C.G.A. 15-19-51 states:

Unauthorized practice of law forbidden

(a) It shall be unlawful for any person other than a duly licensed attorney at law:

(1) To practice or appear as an attorney at law for any person other than himself

in any court of this state or before any judicial body;

(2) To make it a business to practice as an attorney at law for any person other

than himself in any of such courts;

(3) To hold himself out to the public or otherwise to any person as being entitled

to practice law;

(4) To render or furnish legal services or advice;

(5) To furnish attorneys or counsel;

(6) To render legal services of any kind in actions or proceedings of any nature;

(7) To assume or use or advertise the title of "lawyer," "attorney," "attorney at

law," or equivalent terms in any language in such manner as to convey the

impression that he is entitled to practice law or is entitled to furnish legal

advice, services, or counsel; or

(8) To advertise that either alone or together with, by, or through any person,

whether a duly and regularly admitted attorney at law or not, he has, owns,




[email protected]

conducts, or maintains an office for the practice of law or for furnishing legal

advice, services, or counsel.

(b) Unless otherwise provided by law or by rules promulgated by the Supreme Court, it

shall be unlawful for any corporation, voluntary association, or company to do or

perform any of the acts recited in subsection (a) of this Code section.

A thorough search of the membership of the State Bar of Georgia shows that neither

Dann Slayden Cross nor Sharon Harvey Cross are lawyers, licensed and admitted to

practice law in Georgia. It is clear from the Plaintiffs Complaint that Dann Slayden Cross

and Sharon Harvey Cross have prepared pleadings on behalf of their minor children and

have taken legal action on the childrens behalf. Both Dann Slayden Cross and Sharon

Harvey Cross have furnished legal services to their children by filing pleadings on their

behalf and advancing legal theories of recovery on behalf of their children. The above

described actions taken by Mr. and Ms. Cross on behalf of their children is a crime and the

complaint, as to the children, must be dismissed because they are not properly before the

court, and the complaint filed by Mr. and Ms. should be dismissed based on their unlawful,

criminal actions.

Disallowing non-lawyer parents to act as lawyers on behalf of their children has been

soundly disapproved by the courts. In Walker. et al v. Atlanta Public Schools, 2010 U.S. Dist.

LEXIS 66230, Judge Timothy Batten, in a civil rights action, held:

While Fed. R. Civ. P. 17(c)(1)(A) permits a parent to file suit on behalf of his

or her child, a non-lawyer parent is not permitted to serve as the child's legal counsel. Devine v. Indian River County School Board, 121 F.3d 576, 581 (11th

Cir. 1997); Whitehurst v. Wal-Mart, 306 F. App'x 446, 449 (11th Cir. 2008)

(same) (unpublished opinion). Additionally, 28 U.S.C. 1654 only authorizes

individuals to "plead and conduct their own cases personally." Section 1654




[email protected]

does not extend the right to file an action pro se to the representation of others.

Devine, 121 F.3d at 581; Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.

2008) ("It is well established that the privilege to represent oneself pro se

provided by 1654 is personal to the litigant and does not extend to other

parties or entities.") Accordingly, this Court is required to dismiss this action, pursuant to 28 U.S.C. 1915(e)(2)(B).

Walker at 1, 22

CONCLUSION

For all of the above and foregoing reasons, facts and citations of law submitted, the

Plaintiffs Complaint against Defendant Lisa Rambo and her unnamed spouse should be

dismissed by this Honorable Court, with prejudice, and with all costs of this action cast

upon the Plaintiffs.



WILLIAM D. NESMITH, III Georgia Bar No.: 535792

Attorney for Defendants

P.O. Box 295 Americus, Georgia, 31709 229-931-4427 229-380-0279 fax [email protected]

2 See also Hafez v. Madison et al, 2008 U.S. Dist. LEXIS 84650, pages 13, 14 holding that non-attorneys

cannot litigate the interest of another and that parents may not bring a pro se action on behalf of their children.



Lisa Rambo Motion to Dismiss.3.8.14Lisa Rambo Brief Motion to Dismiss.3.8.14Lisa Rambo Affidavit

Wrongdoer Lisa C. Rambo responds to federal Lawsuit (Macon, Georgia)

Documents

support of defendants

georgia statutory law

defendant rambo

georgia southwestern

georgia bar

case law

defendants brief

defendants judge lisa