UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO: 11-206570 CIV- JORDAN

ENRIQUE J. VARONA Plaintiff,

V.

M.G. RIETMANN, etal, Defendants,

RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO DISSMISS COMPLAINT Here comes the Plaintiff, Enrique Varona acting in propia persona as a pro se litigant and pursuant to Local Civil Rule 7.1(a)(b)(c), hereby submits this Response in Opposition to Defendants' Motion to Dismiss Complaint, and in support thereof states the following:

I - INTRODUCTION

1. On September 6, 2011 PLAINTIFF filed his first amended complaint into the Court, all DEFENDANTS have been served. 2. On an unknown date, DEFENDANTS response / motion is not dated, stamped by the clerk, or signed, acting through their counsel Assistant State Attorney Daniel A. Jones filed a Motion to Dismiss with prejudice PLAINTIFFS first amended complaint.

3. In their Motion to Dismiss DEFENDANTS counsel makes a number of statements which misrepresents the facts of the PLAINTIFFS Complaint. 4. In their Motion to Dismiss DEFENDANTS counsel makes legal conclusions which do not s apply to a Title 42 U.S.C. 1983 cause of action, In i.d 2, counsel states the following three

reasons in support of his Motion to Dismiss with prejudice:

"(1) Plaintiff fails to state a claim for which relief can be granted; (2) Plaintiff lacks standing; and (3) DEFENDANTS RIETMANN and DIRECTOR OF DMV in his personal capacity are entitled to qualified immunity." II - PLAINTIFF STATES A VALID TITLE 42 U.S.C. 1983 CLAIM Against all DEFENDANTS

5. PLAINTIFF incorporates by reference all allegations contained in paragraphs 1 through 4 of this motion. 6. The unconstitutional actions of DEFENDANTS that constitute the causes of action are described in the chronology of the PLAINTIFF'S Complaint. "By the plain terms of section 1983, two - and only two - allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." - Gomez v. Toledo, 446 U.S. 635 (1980). 7. The question presented by a motion to dismiss a TITLE 42 U.S.C. 1983 action is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

8. PLAINTIFF is making a valid 1983 claim because DEFENDANTS acted in their official capacity as a State Trooper under the supervision/control of the Florida DMV a branch/department of the state of FLORIDA and DADE COUNTY the municipality were the acts occurred and all corporations acts only by the acts and omissions of humans. 9. PLAINTIFF states a valid claim because he is making Claims for the deprivation of certain specific rights denoted in the Bill of Rights and made applicable to the states through incorporation, nor would as alleged the failure to plead facts showing the plaintiffs theory of liability grounds for dismissal since the DEFENDANT can serve interrogatories requiring the PLAINTIFF to particularize the theory of liability. In answering this question, the Court must assume that the plaintiffs allegations are true, including all facts alleged on information and belief, and must draw all reasonable inferences in the plaintiffs favor. Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996) Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 10. PLAINTIFF states a valid claim because his allegations fall under the substantive component of the due process clause that bars certain arbitrary, wrongful government actions, regardless of the fairness of the procedures used to implement them. 11. PLAINTIFF states a valid claim because his claims fall under the procedural component of the due process clause that prohibits the deprivation of life, liberty, or property (his automobile) without fair procedure. 12. In addition when a PLAINTIFF asserts the violation of a right specifically identified in the Bill of Rights or protected under the substantive component of the due process clause, the violation is complete at the time of the challenged conduct and the 1983 remedy is available. 13. PLAINTIFF states a valid claim because DEFENDANTS policies under color of law caused the violations suffered by him and they did so to make money, If a PLAINTIFF colorably states

facts which, if proven, would entitle him to relief, a motion to dismiss for failure to state a claim should not be granted. See; Dairies v. Kraft Foods, 232 F.3d 979, 994 (9th Cir. 2000).

Ill - PLAINTIFF HAS STANDING TO BRING THIS ACTION Against all DEFENDANTS

14. PLAINTIFF incorporates by reference all allegations contained in paragraphs 1 through 13 of this motion. 15. The unconstitutional actions of DEFENDANTS that constitute the causes of action are described in the chronology of the PLAINTIFF'S Complaint. 16. PLAINTIFF has standing because he suffered the loss of use and ownership of his automobile which were the means for him to make a living and operate in interstate commerce. 17. PLAINTIFF has standing because it was the arbitrary, unlawful, unconstitutional, actions and conduct of DEFENDANTS that are the direct cause of PLAINTIFF injury and/or loss. 18. PLAINTIFF has standing because it is very likely that a jury of his peers will rule in favor of PLAINTIFF in a Court of law.

IV - DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY

19. PLAINTIFF incorporates by reference all allegations contained in paragraphs 1 through 18 of this motion. 20. The unconstitutional actions of DEFENDANTS that constitute the causes of action are described in the chronology of the PLAINTIFF'S Complaint. 21. DEFENDANT, Trooper M.G. RIETMANN is not protected by qualified immunity in this cause of action because he violated PLAINTIFF clearly established constitutionally protected

civil rights including the 4th, 5th, 6th, 8th, 14th, amendments as set forth in the Bill of Rights of the Constitution for the UNITED STATES OF AMERICA. 23. DEFENDANTS Florida DMV and STATE OF FLORIDA are not entitled to Qualified Immunity since such a right does not exits under the UNITED STATES Constitution, the word "immunity" is only mentioned twice in the constitution and no were it grants any supremacy to public employees over the people, see;

"Article IV, Section. 2. "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." thus implying absolute equality of all citizens whether or not they work for the State or not. And in Section 1 of the 14th Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." which further enforces the construct of equality."

24. There is categorically and absolutely zero implication or statement within the llth Amendment that says or implies that a State cannot be sued or has qualified aka sovereign immunity. 25. DEFENDANTS Counsel claims of qualified immunity is saying that "they the government" are Sovereign, that "they the government" can Lord it over "we the people" as "Kings and Queens" who have been put on the throne by God Himself (thereby taking on the very persona of King George who was thrown out by the American Revolution).

26. DEFENDANTS claim of qualified immunity is to say that they the government, like the King and Queen, can do no wrong because, after all, God put them on the nations throne, and God can do no wrong. This is the origins of sovereign immunity under English Common Law which is subordinate to and overruled by our Constitution. 27. As for the Kings and Queens of England's idea that because the Bible states that God puts authorities on the throne (Romans 13:1 "for there is no authority except that which God has established"), that this somehow grants the King or Queen sovereign immunity, it too, is also utterly absurd and illogical. Since such a foolish analysis ignores the fact that under such construct, it implies that God also put people like Hitler or Bush on the 'throne'. Clearly, such a positioning is not one to be respected, but rather that perhaps God's reasoning for such, is more likely to chastise us to stand up against such tyrants, to speak out for the common man, and to stand up for justice, life, freedom, and to hold tyrannical rulers accountable.

V - PRO SE LITIGANTS ENTITLED TO WIDE LATITUDE

28. PLAINTIFF incorporates by reference all allegations contained in paragraphs 1 through 17 of this motion. 29. The unconstitutional actions of DEFENDANTS that constitute the causes of action are described in the chronology of the PLAINTIFF'S Complaint. 30. "Pro Se (Without a Lawyer, representing self) pleadings are to be considered without technicality; pro se litigants pleadings are not to be held to the same high standards of perfection as lawyers." - Homes v. Kerner, 92 S.Ct. 594; Jenkins v. Mckethen, 395 US 411, 421 (1969); Picking v. Penna. RWY. CO. 151 F.2d 240; uckett v. Cox, 456 F.2d 233.

31. "The pleading of one who pleads pro se for the protection of civil rights should be liberally construed" -Bloodv. Margis, 322 F.2d 1086 (1971). 32. There are decisions in virtually every federal circuits that generously proclaim that pro per petitions should be construed liberally and that pro per petitioners should be held to less stringent standards than lawyers. See, e.g., Price v. Johnston (1948) 334 U.S. 266, 292; Chase v. Crips (10th Cir. 1975) 523 F.2d 595, 597; Curtis v. Illinois (7th Cir. 1975) 512 F2d 717; Ham v. North Carolina (4th Cir. 1973) 471 F.2d 406, 407; Hairston v. Alabama (5th Cir. 1972) 465 F.2d 675, 678 n5; Turrell v. Perini (6th Cir. 1969) 414 F.2d 1231, 1233; Montgomery v. Brierly (3rd Cir. 1969) 414 F.2d 552; Pembrook v. Wilson, (9th Cir. 1966) 370 F.2d 37, 40; Whittaker v. Overholster (B.C. Cir. 1962) 299 F.2d 447, 448. See also Haines v. Kerner (1972) 404 U.S. 519. 33. This right is also protected under the First Amendment Free Speech Clause. And within those rights, the pro se litigant's court submissions are to be construed liberally and held to less stringent standards than submissions of lawyers. If the court can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with rule requirements. Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999).

34. The courts provide pro se parties wide latitude when construing their pleadings and papers. When interpreting pro se papers, the Court should use common sense to determine what relief the party desires. S.E.C. v. Elliott, 953 F.2d 1560, 1582 (llth Cir. 1992). See also, United States v. Miller, 197 F.3d 644, 648 (3rd Cir. 1999) (Court has special obligation to construe pro se litigants' pleadings liberally); Poling v. Khovnanian Enterprises, 99 F.Supp.2d 502, 506-07 (D.N.J. 2000). 35. PLAINTIFF has the right to submit pro se briefs on appeal, even though they may be inartfully drawn but the court can reasonably read and understand them. See, Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). Courts will go to particular pains to protect pro se litigants against consequences of technical errors if injustice would otherwise result. U.S. v. Sanchez, 88 F.3d 1243 (D.C.Cir. 1999).

WHEREAS

PLAINTIFF,

Enrique Varona respectfully

asks this Court to deny

DpFEI^DANTS/Motion to Dismiss with prejudice and to set this case for TRIAL BY JURY.

Erlrique! Varona 14823 SW. 125 Court Miami, Florida 33186 305-812-3784
CERTIFICATE OF SERVICE

I FTEREB Y CERTIFY that a true and correct copy of the foregoing was sent by mail to Daniel A. Jones, Assistant Attorney General, Office of the attorney General located at 1515 North ler Drive, Suite 900. West Palm Beach, Florida 33401 who are the Attorneys for effcndants. On this 26th day of March, 2012.