No.

18-55461
__________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BILLY Z. EARLEY,

Plaintiff-Appellant,

v.

KIMBERLY KIRCHMEYER, in her individual and official capacity

as the Executive Director of the Board of California; GLENN
MITCHELL, in his individual and official capacity as the Executive
Director of the Physician Assistant Board of California; ZACHERY
MORAZZINI, in his individual and official capacity as Chief
Director, Office of Administrative Hearings; DOES, 1-100,

Defendants-Appellees,

On Appeal from the United States District Court

for the Central District of California
No. 5:16-cv-02274-AB-SK
Honorable Andre Birotte Jr.,

APPELLANT’S OPENING BRIEF

Billy Z. Earley
Appearing in Propria Persona
2144 Wembley Lane, Corona CA 92881
Telephone: (714) 615-4956
E-mail: bze2101@aol.com

Self-Litigant for Appellant

 TABLE OF CONTENTS

Page
TABLE OF CONTENT ............................................................................................. i

TABLE OF AUTHORITIES .................................................................................... ii

STATUTES AND OTHER AUTHORITIES .......................................................... iii

INTRODUCTION .....................................................................................................1

STATEMENT OF THE CASE ..................................................................................2

JURISDICTIONAL STATEMENT ..........................................................................3

ISSUE(S) PRESENTED ............................................................................................3

ARGUMENT .............................................................................................................4

I. VIOLATION OF OATH OF OFFICE ..................................................4

II. COURT ERRED IN DISMISSAL OF RES JUDICATA BECAUSE

STATUTE DOES NOT APPLY TO CASE …………………...…….5

III. MASSIVE VIOLATIONS OF HEALTHCARE RIGHTS DUE TO

DOJ ENFORCEMENT CORRUPTION………….…..………….….7

IV. PERJURED FALSE TESTIMONY USED TO SET ASIDE A

FEDERAL DEFAULT IN COURT………...……….……..……..…9

V. REVIEW OF LEGAL STANDARDS………………………………11

CONCLUSION ........................................................................................................14

CERTIFICATE OF COMPLIANCE…………………………………..……….….1

CERTIFICATE OF SERVICE………………………………..………………...N/A

i
 TABLE OF AUTHORITIES

Page(s)
Cases

Alliance for Colorado's Families v. Gilbert,

172 P.3d 964, 967 (Colo.App.2007)……………………………...………13
Hazel-Atlas Glass Co. v Hartford-Empire Co., 322 U.S. 238 (1944)….…13
Hysler v. Florida, 315 U.S. 411, 413 (1942)……………………………...12
Mooney v. Holohan, 294 U.S. 103 (1935)………………………………..12
New York ex rel. Whitman v. Wilson, 318 U.S. 688, 689 (1943)…….….12
Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)………………………..7
Phillips/May Corp. v. United States
524 F .3d 1264, 1267 (Fed. Cir. 2008)…………………………….……….5
Sheffield, 465 So. 2d at 355
(quoting In the Matter of Samford, 352 So. 2d 1126, 1129 (Ala. 1977)….11
White v. Ragen, 324 U.S. 760, 764 (1945)………………………………..11

Statutes

5 U.S.C. § 7311………………………………………………………….....11
28 U.S. Code § 453………………………………………………………….4
28 U.S.C. § 1291…………………………………………………………….3
28 U.S.C. § 1331…………………………………………………………….3
42 U.S.C. § 1983..............................................................................................2

ii
 TABLE OF AUTHORITIES

Page(s)
Cases

Rules
FRCP Rule 57 ..................................................................................................3
FRCP RULE 60…………………………………………………………….13

Other Authorities

California Assembly Bill 1909……………………………………………..12

Government Code 1363(a)(3)..........................................................................4
Government Code 1770 (i)…………………………………………………..4
Executive Order 10450……………………………………………………..11
Brady to Agurs and Beyond,
69 J. CRIM. L. & CRIMINOLOGY 197, 201 (1978)…………………..…12
Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies,
77 WASH. U. L.Q. 713, 755 (1999)……………………………................12

Addendum

Kamala Harris - Notice of Voluntary Dismissal FRCP 41a(1), 02/01/2017

iii
 INTRODUCTION

Appellant is a Physician Assistant Healthcare Advocate and a National

Adviser for Black Doctors Matter and an Advocate for the World Sickle Cell

Federation. In addition, Appellant was a Panelist for a Congressional Briefing held

in Washington DC, Cannon Office Building, Room 122, on April 25, 2018.

Appellant provided essential testimony to Legislative Members of Congress

regarding the Department of Justice statutory relationship with the Medical Board

of California, and how they have both adopted very dangerous unlawful policies.

The state police regulate healthcare professionals, and police misconduct is

regulated by the California Attorney General’s office. Present evidence shows

massive state police misconduct being committed against their licensees and the

Attorney General’s office is sending out “blanket” letters to all complainants

stating they will not investigate their complaints due to Attorney-Client-Police

privilege; thus, chilling all Due Process and Constitutional rights in California.

Appellant was the subject of similar misconduct and retaliation after he

identified state police misconduct, involved in: (i) Photo shopping signatures off

charts; (ii) Alteration of undercover video evidence; (iii) Manufacturing evidence

with the intent to remove Medical License; (iv) Concealing evidence and

confidential informants employed by Appellant; and (v) Sharing confidential

complaints with the perpetrators leading to serious physical and hostile retaliation.

1
 STATEMENT OF THE CASE

Appellant filed Original Complaint on October 31, 2016 requesting damages

pursuant to 42 U.S.C. § 1983, for civil rights’ violations and for declaratory and

injunctive relief. The nature of the action sought remedy and redress for violations

of Appellant’s individual rights under color of law, including but not limited to;

a) Violation of procedural due process rights,

b) Refusing or neglecting to prevent such deprivations,

c) Fourteenth Amendments violation of the United States Constitution, and

d) Retaliation for exercising freedom of speech to report state police and

prosecutorial misconduct. See Original Complaint (“OC”) p.2 ¶1.

In addition, Appellant submitted numerous exhibits with the OC showing there

was good cause to file complaint. See OC Exhibit F – A letter sent to Appellees

after threats and extortion by the Prosecutor threatening and charging Appellant

$20,000.00 dollars for each day of the hearing if he fought the unlawful charges.

See OC Exhibit D – A Forensic report confirming police and prosecutorial

misconduct and photo shopping signatures off Subpoenaed charts.

Furthermore, appellees used a disgruntled employee working for Appellant to

tamper with charts and she removed documents. See OC Exhibit A, and B – her

identity was concealed and she sued for similar accusations alleged by Appellees,

even though, her “recorded” testimony stated that Appellant did nothing wrong.

2
 JURISDICTIONAL STATEMENT

The United States District Court for the Central District of California has

jurisdiction of this complaint since it involves federal and civil rights violations

under color of law. The Court has jurisdiction pursuant to 28 U.S.C. § 1331, 42

U.S.C. § 1983, and Rule 57 of the Federal Rules of Civil Procedure. Venue is

proper pursuant to 28 U.S.C. § 1291, Appellees are state government officials and

Appellant lives within this district. Respectfully, Appellant is hereby appealing the

following Court orders; ECF 57 entered on May 10, 2017, ECF 85 entered on

November 29, 2017, and ECF 96 and Appellant is appealing the Court Judgement

ECF 97, dated and entered on March 7, 2018.

ISSUES PRESENTED

1. The California Attorney General, District Judge, and the Magistrate

Judge have violated their oath and they have no oath of office or fidelity bonds

filed with the Secretary of State; they lack authority all rulings must be invalidated.

2. The Attorney General’s Office adopted policy of refusing to

investigate Citizens’ Complaints, State police misconduct, and forwarding

confidential complaints to the perpetrators is a crime and should not be rewarded.

3. The Res Judicata supplemental order violated Bench Practicing laws,

it did not apply to Appellant’s case, it does not apply to Defendant Zackery

Morazzini, and it prejudiced Appellants civil complaint and civil rights.

3
 ARGUMENT
VIOLATION OF OATH OF OFFICE

I. The Government Code 1363(a)(3) is strict and explicitly provides:

Each judge of a superior court, the county clerk, the clerk of the court, the

executive officer or court administrator of the superior court, and the recorder shall

file a copy of his or her official oath, signed with his or her own proper signature,

in the office of the Secretary of State as soon as he or she has taken and subscribed

his or her oath. This was not done, in violation of the California Constitution.

In addition, pursuant to 28 U.S. Code § 453, Oaths of justices and judges,

and section 1770 (i) of the California Constitution provides; An office becomes

vacant on the happening of any of the following events before the expiration of the

term: “His or her refusal or neglect to file his or her required oath or bond within

the time prescribed.” There is clearly improper supervision of this office.

There are more reasons to invalidate the District and Magistrate Judge

rulings based on the 1363(a)(3) history, which includes: (i) Magistrate Steve Kim

permitted numerous individuals to submit known perjury statements to set aside a

lawful award granted to Appellant, see ECF 57; (ii) Magistrate Steve Kim

recommended a supplemental briefing on the Res Judicata, a statute that did not

apply to Appellant’s case, see ECF 96; and (iii) The District Judge ruled on an

erroneous statute to recuse and he refused to correct the record, see ECF 85.

4
 COURT ERRED IN DISMISSAL OF RES JUDICATA BECAUSE
STATUTE DOES NOT APPLY TO CASE

II. The Court erred in dismissal of the Res Judicata and the proper case

law and defense was documented. The res judicata is not a one size fits all statute

and it has downfalls just like any other statute. The res judicata depends on the

judicial and administration of its application, a fact that Congress has held since

the creation of this statute. This statute was improperly applied to this case.

Appellant raised a proper objection with respect to the res judicata and how

it was introduced into the equation. The res judicata is invalidated if the

Administration or Administrative process was “(1) arbitrary, capricious, and abuse

of discretion, or otherwise not in accordance with law; (2) obtained without

procedures required by law, rule, or regulation having been followed; and or (3)

unsupported by substantial evidence.” See legal conclusions on res judicata de

novo Phillips/May Corp. v. United States, 524 F .3d 1264, 1267 (Fed. Cir. 2008).

Appellant argued that the res judicata does and cannot apply to this instant

case because of the enforcement and administrative “CRIMES” that were

intentionally commissioned to thwart due process of state and federally protected

rights in California and in the United States of America. See Docket 36, Plaintiff

Affidavit of Fact and Objections, p8 line 8, filed January 30, 2017.

Appellant was a panelist and spoke with Congressional Members regarding

this blatant and outrageous misconduct and intentional violation of federally

5
protected rights of American citizens in the state of California . The Administration

and Enforcement of Justice by present employees of the Department of Justice

violates state and federal laws. One such violation is a clear abuse of power by

allowing and encouraging “bad cops” to break the law and when citizens complain,

they simply tell them that they cannot investigate anything due to their relationship

with each other, and then sends the “confidential complaint” to the bad cops.

In addition, the res judicata cannot apply to this particular case because the

Administrative Procedure Act has steps and guidelines that the courts must follow.

The Court abused its discretion by bringing the administrative process to a

grinding halt, which is unconstitutional. This violation of the State police powers

to harass and violate state and federally protected laws of its citizens is not and

cannot be upheld by any statute or ruling in a civilized world.

The res judicata is a defense used to abort legal claims against their

opponents. The Magistrate introduced the res judicata, a strategic move designed to

enable the defendants to continue their wraith of destruction against the Medical

Community. Appellant believes this type of practice of law from the bench is a

clear violation of oath and the Magistrate’s Delegation of Authority and his Bonds

does not provide promise for this type of conduct. Appellant requested his oath,

bonds, and delegation of authority and he terminated the case for doing so, which

was a clear abuse of discretion because Appellant was correct. See Docket 81.

6
 MASSIVE VIOLATIONS OF HEALTHCARE RIGHTS
DUE TO DOJ ENFORCEMENT CORRUPTION

III. It is held that a renewed motion for judgment as a matter of law is

properly granted only “if the evidence, construed in the light most favorable to the

nonmoving party, permits only one reasonable conclusion, and that conclusion is

contrary to the jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).

There are massive number of cases in California where the AG is just not

interested in holding crooked cops responsible for misconduct, this is very, and

extremely, identical to the rogue Massachusetts government chemist, Annie

Dookhan; who single handedly placed over 23,000 innocent people in jail.

Gloria Castro, the Supervising Deputy Attorney General has taken over the

position for Annie Dookhan in the state of California. Appellant reports at least 15

incidents of medical or prosecutorial / attorney misconduct; many incidents were

felonies. Refer to Docket 38, RJN, Exhibit 14, filed January 27, 2017. This is the

type of “blanket” letter sent by Castro after a citizen complaint is made.

First, the “confidential” complaint was sent to the Department of

Consumer Affairs. Instead of investigating the complaint there, the DCA

forwarded the complaint to the AG’s office. They stated, “We represent the people

your complaint outlines.” Then they said, “We are unable to comment.” Then, on

the last page, she forwards the confidential complaint to the prosecutor and the

enforcement team. There was absolutely no investigation of the ensuing complaint:

7
1. Citizens Complaint filed 12-21-2015 without investigation

2. Fabricated False evidence about IV Placements, 4 Nurses affected

3. Hired Appellants employee to tamper with charts and sue him

4. Photo shopped signature off of a subpoenaed chart to screw the

medical director

5. Tampered and altered an undercover police video for the purpose of

removing medical license

6. Concealed the altered undercover video for denying due process

7. Concealed the employee identity that they used as a confidential

informant without Appellants knowledge

8. Citizen Complaint filed 04-26-2016 without investigation

9. Ignored Forensic evidence proving police misconduct

10.Ignored professional video analysis and common sense showing

misconduct

11.Ignored racial tones made by their prosecutors

12.Caught protecting and following lawsuit against CVS, a known

lobbying special interest group with close ties to the Governor

13.Lied about the patient findings and distorted the actual facts, and

14.Retaliated and Extortion of Appellant after getting the “confidential

complaint” from Gloria Castro, harassed, bullied, and the list goes on.

8
 PERJURED FALSE TESTIMONY USED TO SET
ASIDE A FEDERAL DEFAULT IN COURT

IV. Zackery Morazzini is an appointed official heading the Office of

Administrative Hearings and he colluded with several people including his

attorney to set aside a Default Judgment awarded to Appellant. His misconduct

constitutes an obstruction of justice; Morazzini, his assistant Alicia Boomer, and

his attorney John Echeverria, they all submitted perjured declarations to the Court

for the purpose of setting aside a lawful default motion awarded to Appellant.

Refer to Docket 54, Plaintiff’s opposition to Defendant Zackery Morazzini’s

Motion to set aside default (“PO”) and request for judicial notice (“RJN”), filed on

April 24, 2017. The record uncovered that Morazzini was a supervisor for the AG

before his appointment and he worked in the Government section. Rosemary

Luzon, the Deputy Attorney General (“DAG”) representing the other defendants,

she directly stated that the AG could not represent Morazzini, multiple times.

The record reflect that Morazzini’s assistant Alicia Boomer provided

testimony that she contacted John Echeverria in the Government section of the AG

when they found out about the default judgement; this was far from the truth.

Morazzini’s attorney had to get permission from all agencies, all the defendants,

and he had to create a new document in order to represent Morazzini which

Appellant believes violated the Fair Political Practice Act. See pgs. 7 thru 9.

9
 Morazzini, Boomer, and his attorney all conspired to say that they did

not receive the complaint, the only problem, they both admitted to receiving

the complaint twice. There was an error with the first service sent to them

and Appellant had to repeat the service. Boomer stated that she could not

accept for Morazzini but she accepted it twice. This was gross negligence

and obstruction of justice; they used known perjured statements and

declarations in a federal court to set aside a motion. The real problem here

was the Magistrate had clear knowledge of the fabrications and false

statements and he welcomed these lies with open arms. See Declaration of

Zackery Morazzini and Alicia Boomer dated April 18, 2017.

In addition, the Res Judicata cannot be used to dismiss this complaint

against Zackery Morazzini because he committed perjury, conspired with

others to commit perjury and false statements, and the AG’s office paid to

represent his case when it was a conflict of interests and it was done among

friends and co-workers. The level of crime and corruption that Morazzini is

engaging in is outrageous and this misconduct correlates with the AG’s

position on investigating police corruption against unsuspecting citizens of

California. Morazzini has committed fraud and lied to a federal court to

violate due process and equal rights of the law. Morazzini’s court dealings

and unlawful actions must be stricken as a matter of law.

10
 REVIEW OF LEGAL STANDARDS

V. In cases where misconduct is valued on its face, “Orders of the Court

of the Judiciary are entitled to a presumption of correctness if the charge is

supported by ‘clear and convincing evidence.’” Sheffield, 465 So. 2d at 355

(quoting In the Matter of Samford, 352 So. 2d 1126, 1129 (Ala. 1977)).

The California Constitution, Article 6, Section 13, provides: “No judgment

shall be set aside, or new trial granted, in any cause, on the ground of misdirection

of the jury, or of the improper admission or rejection of evidence, or for any error

as to any matter of pleading, or for any error as to any matter of procedure, unless,

after an examination of the entire cause, including the evidence, the court shall be

of the opinion that the error complained of has resulted in a miscarriage of justice.”

Federal law regulating oath of office by government officials is divided into

for parts along with an executive order (10450) which further defines the law for

purposes of enforcement. 5 U.S.C. § 7311 makes it a federal criminal offense (and

a violation of oath of office) for anyone employed in the United States Government

to advocate the overthrow of our constitutional form of government.

The Supreme Court has long been committed to the principle that due

process forbids the government from obtaining a conviction through the use of

false testimony. Through a long line of cases, the Court has condemned the

prosecution’s / attorneys use of false testimony. See, e.g., White v. Ragen, 324

11
U.S. 760, 764 (1945) (acknowledging that obtaining conviction through knowing

use of perjury violates due process); New York ex rel. Whitman v. Wilson, 318

U.S. 688, 689 (1943) (same); Hysler v. Florida, 315 U.S. 411, 413 (1942)

(prosecution’s complicity in obtaining a conviction through the use of perjured

testimony violates due process).

California Assembly Bill 1909, Patty Lopez, makes it a crime for

prosecutors and Government attorneys to Falsify evidence. In part the legislation

provides: “Exiting law makes it a misdemeanor for a person, or a felony for a

peace officer, to knowingly, willfully, intentionally, and wrongfully alter, modify,

plant, place, manufacture, conceal, or move any physical matter, digital image, or

video recording, with the specific intent that the action will result in a person being

charged with a crime.” The Department of Justice blanket policy to shield police

and prosecutorial crimes violates Assembly Bill 1909.

A U.S. precedent relating case to both false testimony and non-disclosure of

exculpatory evidence were seen in Mooney v. Holohan, 294 U.S. 103 (1935). See

also Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77

WASH. U. L.Q. 713, 755 (1999) (tracing protection against use of perjured

testimony to Mooney); Michael E. Rusin, Comment, The Prosecutor’s Duty of

Disclose: From Brady to Agurs and Beyond, 69 J. CRIM. L. & CRIMINOLOGY

197, 201 (1978) (citing Mooney as originating duty). In Mooney, the prisoner

12
alleged that his conviction violated due process because the “prosecuting

authorities” knowingly used perjured testimony, which was the sole basis for his

conviction.

The framers' intention is best indicated in the Advisory Committee's

discussion of the rule. 28 U.S.C.A. following Rule 60, at p. 313. "The

amendment... [makes] ... fraud an express ground for relief by motion; and under

the saving clause, fraud may be urged as a ground for relief by independent action

insofar as established doctrine permits. Rule 60(b) is so phrased as to imply that

"fraud on the court" is a ground for invalidation of a judgment different from the

grounds which will sustain an "independent action"; the clauses using these

phrases are separated by another dealing with a quite distinct subject.

Each Defendant-Appellee violated clear established rules and procedures

and their oath to protect the public in which they serve, "A court may at anytime

set aside a judgment for after discovered fraud upon the court. Hazel-Atlas Glass v.

Hartford ... Rule 60(b) ... expressly does not limit the power of a court to entertain

an action for that purpose." (Italics added.)

The decision of an administrative agency will be upheld “unless it is

arbitrary or capricious, unsupported by the evidence, or contrary to law.” Alliance

for Colorado's Families v. Gilbert, 172 P.3d 964, 967 (Colo.App.2007). The fact

of misconduct provides no doubt that Appellant should have been Granted Relief.

13
 CONCLUSION

Appellant-Plaintiff submitted 7 uncontested Affidavits and 5 Declarations

proclaiming his innocence, including a detached Affidavit from Margaret Frank

testifying that Zackery Morazzini and others committed Perjury and made

intentional false statements to a federal court body. Docket 76, Exhibit 5.

For the foregoing reasons, the judgment of the district court should be

reversed, relief sought granted, and/or an evidentiary hearing ordered to address

manufacturing and evidence tampering.

Date: June 2, 2018

Billy Z. Earley
2144 Wembley Lane
Corona, California 92881

_______________________________
Billy Z. Earley

Self-Litigant for Appellant

Appearance in Propria Persona

14
 CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 3,364 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionately spaced typeface using Microsoft Word

Times New Roman 14-point font.

Date: June 2, 2018

Billy Z. Earley
2144 Wembley Lane
Corona, California 92881

_______________________________
Billy Z. Earley

Self-Litigant for Appellant

Appearance in Propria Persona

1
 CERTIFICATE OF SERVICE

I hereby certify that on, I electronically filed the foregoing with the Clerk of

the Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.