Petition for Writ of Certiorari of blocking appeals

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

NM Supreme Court No. ___________________

NM Ct. App. No. Order of August 27, 2013

Second Judicial Dist. Ct. Case DM-12-610 rel. DV-12-234

BARRIE LEE DERRINGER

Petitioner-Appellee, Respondent,

vs.

DAVID BRIAN DERRINGER,

Respondent-Appellant-Petitioner,

PETITION FOR WRIT OF CERTIORARI

TO THE NEW MEXICO COURT OF APPEALS

Submitted by:

David Derringer

Box 7431

Albuquerque, New Mexico 87194

October 23, 2013

(1)      Questions presented for review

[1.]     Whether the trial court can destroy  court records and order court pleadings not available to be filed by the court clerks in order to obstruct justice and block any appeal?

[2.]    Whether the trial court can enforce any marital settlement agreement that was not  signed or agreed to by either party of Petitioner or Respondent?  Whether state Court of Appeal Judges can act outside of any jurisdiction or judicial capacity to order only David Derringer to be forced to present “future” “request” to use his rights under US Code Title 42 Section 1981 and the 4^th, 5^th and 14^th Amendment contrary to other US Citizens and without jurisdiction of taking the case, being assigned the case or having any jurisdiction over the case, can deny David Derringer proper and legal filing with the court, even when the underlying matter contains lack of jurisdiction and fundamental error and the attending perjury, distortion, falsification, misrepresentation, fraud, conspiracy, public corruption, deprivation of rights, privileges and immunities under statutory federal and state laws, of both citizens and New Mexico State employees working in conspiracy as justices, and be in compliance with the US Constitution Article VI ASupremacy Clause and Oath and Canon as Ajustices and yet remain on the bench?

[3.]    Whether the trial court can block appeals by not forming Order within 60 days of judgment and refusal to file notice of appeal and docketing statements in order to block appeals?

[4.]    Whether the NM Court of Appeals can deprive David Derringer due process and equal protection of the laws by denying forma pauperis  when David Derringer is on proven public assistance "mandating" Order accepting forma pauperis, and do so in a conspiracy to block appeal of underlying public corruption of destruction of court records and the trial court refusing to file legal court papers so as to block further appeal, and wherein the NM Court of Appeals refused to grant forma pauperis as a way to further block appeal of the merits of the case when filing of forma pauperis which has nothing to do with the underlying merits of the case  but only of financial status of the Appellant?

[5.]    Whether the NM Court of Appeals has any jurisdiction to consider the merits of the appeal until taking jurisdiction after  being filed of court record, necessitating assigning a docket case number, and whether the NM Court of Appeals can deliberately refuse to assign a docket case number, when denying forma pauperis in order to further block any ability to appeal to a higher court?

[6.]    Whether the NM Court of Appeals can manipulate the law and rules to deny forma pauperis and refuse to assign a case docket number as a way to block appeals over subject matter  they don't wish to entertain as a way to "obstruct justice" and inhibit the Appellant from reaching the New Mexico Supreme Court and filing a Petition for Writ of Certiorari?

[7.]    Whether denial of forma pauperis to a US Citizen on proven public assistance conforms with Oath, and Constitutional due process and equal protection of enabling use of the United States Court system under "justice to the rich and the poor"?

[8.]    Whether malicious denial of forma pauperis mandated to be approved by the New Mexico Court of Appeals can be used as a means of ransom and extortion against a “poor” US Citizens’ rights to use the court system under “forma pauperis” and Pro-Se as an Appellant in order to stop due process and equal protection of rights to appeal illegal actions and orders of the trial court?

[9.]    Whether the New Mexico Court of Appeals can attempt to force a Pro-Se U.S.  Citizen to have to hire an attorney, that the court knows the Pro-Se Appellant cannot afford due to proven public assistance as a way to deny and block any appeal and use denial of forma pauperis as a way to use that force to deprive due process and equal protection as a way to stop any appeals?  

[10.]  Whether the New Mexico Court of Appeals' malicious denial of forma pauperis in the face of mandated affirmance due to proven public assistance, in order to block appeals and ignore underlying issues of destruction of court records and trial court's blocking appeal, constitute "cruel and unusual punishment" for exercising Constitutional and statutory rights to appeal judgments in violation of the 13th Amendment?

(2)      HISTORY AND FACTS with supporting authorities:

The trial court of DM-12-610 is directly related to DV-12-234 wherein no summons was served to David Derringer in DV-12-234 and wherein such has denied and deprived Constitutional rights of the 1st, 2nd, 4th, 5th, 13th and 14th Amendments and rights under US Code Title 42 Section 1981, and has been used repeatedly to violate all rights and due process and equal protection in DM-12-610. The trial court of DM-12-610 illegally issued a Final Judgment on November 15, 2012 that was contradictory and legally unenforceable  and which was not signed by either the Petitioner or the Resondent making it not a binding contract between the parties for voidable effect of any enforcement. Such "Final Judgment" was further appealed to the higher courts ongoing. In the interim, the Petitioner, without legal standing filed  an Order to Show Cause against the Respondent claiming in fraud that the Respondent had not conformed  to the Final Judgment despite no binding contract signed by both parties that included fraud, that was legally "unenforceable". Judge Hadfield conducted a hearing wherein the Judge disregarded portions of the Final Judgment of November 15, 2012 mandating certain performances of the Petitioner, ie. payment of all "pre-marriage debt", so as to allow the Petitioner to steal the Respondent's sole and separate inheritance monies spent on the Petitioner's pre-marriage IRS debt and investment in the 2005 Chevy Silverado, and instead allowed the Petitioner to escape provisions of the Final Judgment, but stole the entire equity of the 2005 Chevy Silverado and the Respondent's inheritance  with fraud for the Petitioner. Judge Hadfield then "refused" to sign and file a formal written order for over 60 days despite the Rules of Civil Procedure in order  to block the Respondent from any appeal. As the Respondent filed notification of this breach of rules and proven judicial fraud, Judge Hadfield destroyed, concealed the Petitioner's court record filings and blocked the legal court papers of the Respondent to be properly filed by first telling the court clerks not to file any court papers of Respondent David Derringer, and then making a illegal "order" that the Respondent's court papers and motions would not be filed of court record, because they exposed the deprivation of due process, equal protection and obstruction of justice of Judge Hadfield that encompassed "public corruption of a judge", likely having  been "bribed" by Barrie Derringer aka Barrie Crowe. This destruction of court records and hiding and obstruction of legal filing encompassed the Notice of Appeal, and the Docketing Statement, so as to attempt to block any further appeals of this atrocious acts to the New Mexico Court of Appeals. As the Respondent continued to exercise his Constitutional due process and equal protection to perfect his appeal by NMRA Rule 12-201 APPEAL AS OF RIGHT, the New Mexico Court of Appeals obstructed and denied legal filing of a Pro-Se party, without taking legal jurisdiction "after" an appeal by trying to block the David Derringer appeal "pro-se" and  illegally denied "forma pauperis" despite the Appellant David Derringer being on proven public assistance and filing the required forms  of notarized affidavits if indigency. The New Mexico Court of Appeals was obviously holding "forma pauperis" mandated to be granted to David Derringer as a form of criminal ransom and extortion to attempt to "force" David Derringer to hire an attorney, or have the proven effect of obstruction of justice to block the appeal by forcing an indigent US citizen to pay filing fees that legally are waived by proven public assistance as a way of extortion to block an appeal of subject matter that the court does not want exposed or to entertain of "public corruption" of a trial court's destruction of court records, denial of due process, equal protection and judicial fraud and the trial court's own blocking of further appeal. US v. Kozminski, US Mich 1988, 108 S. Ct. 2751, 487 US 931, 101 L.Ed.2d 788, on remand 852 F.2d 1288. Because David Derringer properly uses the courts pro-se, and will appeal all unjust decisions without any basis in laws to higher courts, the NM Courts and others have decided to stop all due process and equal protection against David Derringer by unlawful orders not to use the courts, illegal “injunctions” to limit and persecute and deny legal court filings by David Derringer and illegal and prejudiced Orders designed to single out and “target” David Derringer to produce petitions, memorandums and other “hoops” to be jumped through unlike any other citizen and totally “unconstitutional”, and illegal deprivation of mandated granting of "forma pauperis" as an extortion "tool" to stop any appeals by David Derringer. State v. Cochran, 112 N.M. 190, 192, 812 P.2d 1338, 1340 (Ct. App. Cert denied 112 N.M. 308, 815 P.2d 161 (1991). ; ”Smith v. US CCA8 (Mo) 1907 157 F.721, 85 CCA 353 Cert denied 28 S. Ct. 569, 208 US 618, 52 L.Ed 647 . ; US v. Guest, US Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239. ; US v. McDermott, CA2 (N.Y.) 1990, 918 F.2d 319 cert. denied 111 S. Ct. 1681, 500 US 904, 114 L.Ed.2d 76.; Williams v. U.S. C.A.5 (Fla) 1950, 179 F.2d 644 cert. granted 71 S. Ct. 77, 340 U.S. 849, 95 L.Ed 622 affirmed 71 S.Ct. 581, 341 U.S. 70, 95 L.Ed 758.; US v. Ellis WDSC 1942, 43 F.Supp. 321.; Anderson v. U.S. U.S. W. Va 1974 94 S.Ct. 2253, 417 U.S. 211, 41 L.Ed.2d 20; US v. Ehrlichman, CADC 1976, 546 F.2d 910, 178 US App.DC 144, cert denied 97 S. Ct. 1155, 429 US 1120, 51 Led.2d 570 “Title 18 Section 241. This "cruel and unusual punishment" of deprivation of Constitutional rights to represent oneself in the courts both pro-se and as a "poor" citizen violated all Judicial Oath, Canon, Code of Judicial Conduct and Constitutional 1st, 4th, 5th, 13th and 14th Amendments and violated the provisions of the US Code Title 42 Section 1981.  Jones v. Mayer Co., U.S. Supreme Court 392 U.S. 409 (1968) No. 645.; US v. Barrera-Moreno, 951 F.2d 1089; Kunkel v. US, 113 S. Ct. 417, 506 US 957, 121 L.Ed.2d 340; Ruis v. US, 113 S. Ct. 985, 506 US 1055, 122 L.Ed.2d 137; Tucker v. Outwater, 118 F.3d 930 cert denied 118 S. Ct. 562, 522 US 997, 139 L.Ed.2d 402. The New Mexico Court of Appeals denied forma pauperis and obstructs due process and equal protection for legal representation pro-se without any legal authorities and against the "Supremacy Clause of the Constitution Article VI, in a means of sedition and treason in violation of the 14th Amendment Section 3. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) ; United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). ; United States v. Taylor, 487 U.S.326, 108 S. Ct. 2413, 101 L. Ed. 2d 297,56 U.S.L.W. 4744.  The NM Court of Appeals then "refused" to assign a case number and docket number to this illegal deprivation of forma pauperis and pro-se representation in order to block the instant appeal and all further appeals.  Schwarz v. Folloder, 767 F.2d 125 (5^th Cir. 08/01/1985). ;Telman v. US 67 F.2d 716 cert denied 54 US Supreme Court 860, 292 U.S. 650, 78 L.Ed 1500 Aconspiracy.

 (3)      CONSTITUTION; AND APPURTENANT DECISIONS OF THE UNITED STATES SUPREME COURT AND THE NEW MEXICO SUPREME COURT

Mapp V. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (June 19, 1961)

Olmstead v. United States, 277 U.S. 438, 485 (1928)

United States v. Guest, 383 US 745 (1966); Griffin v. Breckenridge, 403 US 88 (1971) Footnote[ 101] 383 US 787 (1966)

Archuleta v. Lacuesta, 988 P.2d 883, 128 N.M. 13, 1999-NMCA-113 cert denied 990 P.2d 822, 128 N.M. 148 cert denied 120 S. Ct. 937, 528 US 1117, 145 L.Ed.2d 815.

Parratt v. Taylor, 451 U.S. 527, 101 New Mexico Supreme Court 1908, 68 P.Ed.2d 420 (1981)

Advance Opinions, New Mexico Supreme Court, Vol. 37, No. 44, October 29, 1998.

Farmers Gin Company et al, v. J.A. Ward et al., New Mexico Supreme Court No. 7322, 1964.

(4)      Argument to allow Writ of Certiorari:

Pursuant to SCRA Rule 12-502(A) this Petition is both timely and legally filed for Writ or Certiorari despite the obstruction if the NM Court of Appeals to refuse to assign a proper case and docketing number for further appeal in order to block the appeal and the Petitioner-Respondent David Derringer, representing himself Pro-Se, respectfully asks this Court to grant this Petition for Writ of Certiorari in DM-12-610 NM Ct. App. Order of deprivation of forma pauperis and deprivation of pro-se representation Order of August 27, 2013; 30 days have expired of Appellant's proper “Motion for Reconsideration” of Sept. 3, 2013 deemed "denied" by ignoring such Motion after 30 days of filing thereof; such "non-action" of the NM Court of Appeals designed also to stop due process and equal protection and deny and obstruct further appeal. Federalist No. 47 by James Madison. ; Gonzales v. Raich, No. 03-1454 ; United States v. Colorado Supreme Court, No. 98-1081, 10^th USCA; Stoneking v. Bank of America, 132 NM 79, 43 P. 3d 1089; Home Mortgage Bank v. Ryan, 986 F.2d 372, 375 (10^th Cir. 1993).; Prei, Inc. v. Columbia Pictures 508 U.S.49, 113 S.Ct. 1920, 1925, 123 L.Ed.2d 611 (1993).

(5)      Prayer for Relief:

Derringer is entitled to use of any and all United States Courts in forma pauperis when entitled to same under necessity of public assistance status; has a right to represent himself in any United States Court “pro-se” without an attorney; and cannot be denied filing of suits under US Code Title 42 Section 1981(a), cannot be denied filing of legal appeals, and cannot be denied filing of any and all court papers to include, but not limited to pleadings, motions, responses, complaints, notices of appeals, appeals or any other court related papers, and cannot be the subject of any injunction to prevent, control, or orchestrate any “future” litigation or filings of which any particular justice or any particular court has no “jurisdiction” or use of Rule 11 without taking jurisdiction upon legal filing; wherein obviously any “future” litigation has no jurisdiction of any justice in the United States. these matters are "ripe" for determination by the NM Supreme Court. Owen v. City of Independence, United States Supreme Court 445 US 622 (1980) No. 78-1779. The Respondent requests  a Writ of Certiorari to the NM Court of Appeals to properly file the Appeal under forma pauperis, file such appeal with a case and docket number and issue a mandate that the Appellant's appeal be heard properly on the merits as determined by law and Constitution.  Respectfully submitted by______________________________

David Derringer, Box 7431, Albuquerque, New Mexico 87194

CERTIFICATE OF SERVICE

October 23, 2013

I hereby certify that I caused a true and correct original of the forgoing Petition for Writ of Certiorari first class prepaid mail to the following: 

I hereby certify that I caused seven (7) true and correct originals of the foregoing Petition for Writ of Certiorari of the NM Court of Appeals Order of August 27, 2013 to be sent on October 23, 2013 for filing to:

New Mexico Supreme Court

Box 848

Santa Fe, New Mexico 87504

By:__________________________________________

David Derringer, Pro-Se, Box 7431, Albuquerque, New Mexico 87194

mandamus

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

No.__________________

Second Judicial District Court CV-12-1307 consolidated with CV-12-10816

STATE OF NEW MEXICO ex rel.    

DAVID DERRINGER,

          Petitioner,

v.                                                                         

JUDGE ALAN MALOTT,

          Respondent,

         

PETITION FOR WRIT OF MANDAMUS

Submitted by_______________________________________________________

                                      David Derringer Pro-Se

                                      Box 7431

                                      Albuquerque, New Mexico 87194

PETITION FOR WRIT OF MANDAMUS

          Petitioner states:

a)                Grounds for Jurisdiction of Supreme Court.

The New Mexico Supreme Court has original jurisdiction for an Extraordinary Writ  by the Petition for Writ of Mandamus under NMRA 12-504. The Petitioner is the homeless and destitute Pro-Se  Plaintiff of CV-12-1307 consolidated with CV-12-10816 David Derringer v. Maestas and Ward et al. that encompasses multiple and various torts including assault and battery, conversion, infliction of a venereal disease, and much more.  The Plaintiff has been subjected  to the relentless control of Judge Alan Malott, of  the  Second Judicial District Court, County of Bernalillo, State of New Mexico, that violates all law, refusal to obey Oath, Canon, deprivation of Constitutional rights and refusal to peremptory excuse, refusal to recuse for cause and refusal to change the venue, to spite all laws, all of which is totally traceable in circumstantial evidence to criminal bribery of Judge Alan Malott by Defendants NAI Maestas and Ward and Barrie Derringer with collusion and ex-parte communication by the attorneys of Alicia Santos, Floyd Willson and Alain Jackson. Somehow, some agency must stop the judicial corruption of New Mexico, IN the very latest criminal act, Judge Malott corrupts the court record in order simply to dismiss Plaintiff’s cases by fraudulent falsification of the court record that a "hearing" was held  stated in the Order of September 20, 2013 concerning order to show cause and for sanctions which "never took place". In point of fact as the court record shows on a different hearing over Motion to Recuse for Cause of September 17, 2013 Defendants asked for sanction matters to be heard and Judge Malott specifically stated he would reserve that issue for another separate hearing which never took place, proving again that Judge Malott lies to corrupt the court record as "fraud to the courts". This "non-hearing" Order was done to stop any further due process and to stop the Plaintiff  from his day in court to expose that the Defendants and Judge Malott work in "collusion" to attempt to "sanction" the Plaintiff by dismissal of all of his cases by illegal claims that the Plaintiff could not file a "Motion for Change of Venue" with quoting both statutory law NMSA 38-3-3 and attending case laws, which was deemed "frivolous" and "vexatious" by Judge Malott because he illegally denied the Change of Venue and denied a hearing on same that is mandated under statutory law, so as to keep all Defendant's cases before him due to the bribery of NAI Maestas and Ward and Barrie Derringer to defeat all valid tort claims of the Plaintiff and to keep the 10 other persons involved in the assault and battery and conversion/larceny from being prosecuted. In the process also, Judge Malott does "reckless endangerment" to the public welfare, as one tort of the suits was fraudulent negligence, wherein Barrie Derringer infected David Derringer with a permanent incurable venereal disease of HSV-2 "HERPES" virus, of which she will also transmit to every person that she has intimate contact. Judge Malott disregards the public welfare.        The hearing on the matter of “Motion for Recusal for Cause”, was held on September  17, 2013, and the intertwined Motion for Change of Venue was simply ignored and disregarded, after Judge Malott’s already violating the NMSA 38-3-9 mandated peremptory excusal legally exercised by the Plaintiff upon “reassignment” on May 30, 2013, and Judge Malott’s violation of NMSA 38-3-3 to change the venue upon Plaintiff’s motion filed, with Judge Malott denying the Plaintiff legal presentation of his own testimony under oath, denial of presentation of case laws and authorities substantiation mandatory recusal for cause, and refused to allow the Plaintiff legal argument, explanation of exhibits,  or closing statements; in short the Plaintiff was denied “due process and equal protection” of law. US v. Guest, US Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239. All of these actions by Judge Malott were done due to the bribery of the Defendants NAI Maestas and Ward and Barrie Derringer as the court record shows that all decisions by Judge Malott in both CV-112-1307 and CV-12-10816 were against  Oath, Canon, and the Code of Judicial Conduct and against all “LAW”. Elane Photography, LLC v. Willock, .3d, 2013 WL 4478229, 2013 -NMSC- 040, N.M., August 22, 2013 (NO. 33,687) ; Beal v Reidy, 80 N.M. 444. 457 P.2d 376 (1969).  At no time did Plaintiff David Derringer do any "sanction able acts" under the meaning of NMRA Rule 1-011 wherein exercising statutory rights to change the venue under NMSA 38-3-3 is not a "sanction able act".

          Plaintiff's allegations against Judge Malott’s Constitutional deprivations, violations of Oath, and prejudiced treatment against the Plaintiff are circumstantially proven to be done due to bribery and are made under NNRA Rule 1-090, and the court record itself sustains that each and every decision and Order from this judge was meant to block and obstruct justice, protect and insulate from prosecution the Defendants and to stop due process and equal protection against the Plaintiff. SCRA 1986, 1-088.1(D. There is more than a “reasonable questions” to partiality here, but definite proof by violations of all laws. US v. Griffin, 84 F.3d 820 amended CA7 (Ill.) 1996. There has been no sanction able acts by the Plaintiff asking under law NMSA 38-3-3 for a change in venue, and the Defendants are in gross legal error to make claim. Judge Malott has been bought by the Defendants under the meaning “bribery”  to rule against the laws as necessary to protect the Defendants until all claims against them are won or the cases against them “dismissed” by Judge Malott, which has been the tactic of unlawfulness taken by Judge Malott on September 20, 2013. Clark v. Clark, P.3d, 2013 WL 4499346, N.M.App., August 12, 2013 (NO. 31,547). There were no violations of pleadings also in the lawful peremptory excusal filed on May 30, 2013 by the Plaintiff with availability to get rid of Judge Malott due to reassignment of CV-12-10816. The entire hearing of September 17, 2013 was pre-determined. Unknown apparently to the attorneys Alain Jackson, Floyd Wilson, and Alicia Santos, just after the hearing of September 17, 2013 as they were standing outside of the courtroom, they were recorded as laughing at the Plaintiff David Derringer and stating that; "he's (meaning Plaintiff David Derringer) appealing that one too"; "Judges are sick of him"; "he is going from one Judge to the next but he is not going to win"; indicating, since Judge Malott would not make a decision of the hearing until September 20, 2013, that they knew their “bribery” was successful, and they had already won “dismissal” of all claims and that David Derringer would have to further appeal. before the hearing Judge Malott decided that he will not recuse, Judge Malott will not allow this matter to be heard by a fair and impartial judge, Judge Malott will not change the venue for justice to be served, and Judge Malott will retaliate and maliciously dismiss both of these consolidated cases under the fraud of issuing “sanctions” against the Plaintiff. Judge Malott was bribed to prevent prosecution of all Defendants and their attorneys to ensure that David Derringer cannot prosecute any of them for the assault and battery, conversion and other torts, and Judge Malott has done everything to block the Plaintiff from finding and prosecuting the other 10 persons involved in this matter by refusing to make order for identity of the 10 person, blocking the Plaintiff under NMRA Rule 1-019, and blocking the Plaintiff's discovery process. Las Luminarias of the New Mexico Council of the Blind v. Isengard 587 p.2d 444, 92 NM 297. Canon: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.”

          Judge Malott has not been just corrupt in these cases with the Plaintiff, but nation-wide news now is in turmoil over the illegal decisions by Judge Malott making changes in out laws single handedly over issues of gay marriages. It is not the issue of the marriage that is called to the attention here, but the fact that Judge Malott defies the laws mandated by him to uphold, and instead makes rulings based entirely on his own opinions or whomever paid him off in some form of bribe to rule in their behalf. State v. Southern Pacific Co., 281 P.29, 34 NM 306 “N.M. 1929. ; State ex rel. Rodriquez v. American Lefion Post No. 99, 106 N.M. 784, 788, 750 P.2d 1110, 1114 (Ct. App. ). cert denied, 106 N.M. 588, 746 P.2d 1120 (1987) and 107 N.M. 16, 751 P.2d 700 (1988). What we have here is a man that took a government position as judge to then mis-use that power and position for personal gain, exploitation of the position to change the laws as he sees fit, and to be above the law and unaccountable under existing laws to protect not only himself, but to use the position to protect others that he chooses. State ex rel. Newsome v. Alarid, 90 N.M. 568 P.2d 790, 794, 1236, 1240 (1977). (quoting also)  Sims v. Sims, 17, 21, 122 N.M. 618, 930 P.2d 153 (1996-NMSC-078). Judge Malott makes decisions willfully against the current law, and then expects these manifest errors in law to be upheld with his own hand.   “The Law of the Case should not be used to accomplish an obvious injustice, or applied where a previous decision clearly, palpably or manifestly was erroneous or unjust.” “Where there is manifest injustice to one party, with an erroneous decision, it should be disregarded and set aside.”  New Mexico Supreme Court Opinion No. 1998-NMSC-031 No. 18,296 consolidated with: No. 19,118 (Sept 8^th, 1998).;  “law of the case won’t be used to uphold a clearly erroneous decision”. Advance Opinions, New Mexico Supreme Court, Vol. 37, No. 44, October 29, 1998.

          Obviously, no-one other than the parties to the conspiracy were present in an exchange of money, statements for favors, or political pressure or whatever means the agreements were to entirely rule for the Defendants in this matter in some sort of bribery that makes this case happen the way it is, and the Plaintiff certainly was not present and does not have photographs or recordings of same. But the proof is in the circumstantial evidence that all points to the same end, and has been shown to be emphatic and not inadvertent error or mis-judgment of the law; the law mandated to be known by Judge Malott anyway. Morris v. Dodge Country Inc.  513 P.2d 1273, 85 N.M. 491 Cert. Denied 513 P.2d 1265, 85 N.M. 483 “N.M. App. 1973. The key to understanding this entire matter rests with the “voluntary involvement” of Judge Malott. U.S. v. Pedreza 27 F.3d 1515 cert denied 115 Supreme Court 347, 513 U.S. 941, 130 L.Ed.2d 303 cert denied. The proof of the circumstantial evidence that shows the bias, prejudice and bribery that is occurring here, one must go to the foundation of being a justice in the United States. On March 2, 2009 Judge Alan Malott swore an oath of office: 

 “I, Alan Malott, having been appointed to the office of District Court Judge Division 15 in the County of Bernalillo, State of New Mexico, do solemnly swear that I will support the Constitution of the United States, the Constitution and laws of the State of New Mexico and faithfully and impartially discharge the duties of said office to the best of my ability, so help me God.”

 

This entails making of a solid commitment and defines “impartiality”, that goes far beyond the needs of the moment the whim of personal attitude or the desires of another, and itself prevents “bias”, but is designed to commit without reservation to the underlying consistent pattern of moral and social values. Society reposed a trust in Judge Malott when he made this oath, and he has betrayed that trust.  Hannah Arendt-  “The remedy...for the chaotic uncertainty of the future is contained in the faculty to keep and maintain promises.”  In re Williamson, 43 BR 813. This mandates that Judge Malott is to give equal protection and justice to the rich and to the poor and to uphold the law as written and not change of interpret the laws for his own opinion or others that pay him off to do so.  The Code of Judicial Conduct and Canon give mandates to Judge Malott to enforce the law as written, and to render decisions also according to case laws established before his rulings. Canon 3 (B)(2). In this matter every time Judge Malott has made rulings, they are contrary to all law, Statutory, Constitutional and case law.  This is proven in the court records as “willful” and not inadvertent errors in law as exposed with the docket itself  by its own existence the “conspiracy” to rule for the Defendants each time and to prevent the Plaintiff from ever being able to prosecute the other 10 persons involved in the criminal assault and battery and conversion against the Plaintiff. Telman v. US 67 F.2d 716 cert denied 54 Supreme Court 860, 292 U.S. 650, 78 L.Ed 1500.  At the outset of this matter, Motion by the Plaintiff was filed under NMRA Rule 1-019 to achieve “all parties necessary before the court”. Judge Malott denied this motion with explanation that such finding of the other 10 parties to prosecute for the assault and battery and conversion would have to be attained by “discovery”. Each time the Plaintiff detailed the discovery to accomplish the goal of identification of the other 10 persons, and requested Order for same, the Plaintiff was willfully blocked by Judge Malott. Sanctions requested by the Plaintiff upon a motion to compel were fully ignored by Judge Malott with his bribery protection of the Defendants. Discovery enables a Plaintiff to attain information from the Defendants by sources known to them, even if they do not have the information, and since Barrie Derringer was their own employee, they could have easily and legally were mandated to attain the identity of the other 10 persons and Barrie Derringer also herself violated discovery. The “control” issue here mandated Defendants in CV-12-1307 to give up the identity of the other 10 persons, and discovery in CV-12-10816 was to be forced compliance by Barrie Derringer herself, all defied by Judge Malott rendering a mockery of discovery and justice against the due process of the Plaintiff. Judge Malott diverted from a finder of facts to an advocate for the Defendants, and protected them not to have to divulge the information identity of the 10 persons so as to block the Plaintiff from due process and prosecution. This is not only abuse of discretion but "obstruction of justice”, just as the denial of Judge Malott of the Motion for a TRO on 2-7-2012. The denial of the Motion to gain identities under NMRA Rule 1-019, and to block the Plaintiff from the proper discovery of same proves bribery. Judge Malott emphatically does not want the Plaintiff to be able to prosecute the other 10 persons involved. In CV-12-1307 the Plaintiff was forced to amend his complaint to drop and insulate the Corporation of NAI Maestas and Ward and owner Steve Maestas well outside of law, deliberately preventing “due process and equal protection” of torts that are prosecute able but not allowed by the corruption of Judge Malott by personal views and protection of the Defendants.

          In the hearing of 5-1-2012 and later Order of 8-20-2012, Judge Malott defies all New Mexico case laws defeating claims of torts of loss of consortium, alienation of affection, emotional injury, and interference with a legal marriage, in violations against all laws over such torts; Judge Malott claiming by his own hand that such torts do not exist in New Mexico, when they emphatically do according to the New Mexico Supreme Court. Judge Malott violated discovery against David Derringer of accessories to the assault and battery and conversion on February 4, 2012 and blocked any ability to obtain medical records needed for trial on the HSV venereal disease transmitted by Barrie Derringer. United Nuclear Corp. v. General Atomic Co. 96 N.M. 155, 629 P.2d 231 (1980) appeal dismissed 451 US 901, 101 Supreme Court 1966, 68 L.Ed 2d 289 (1981). Judge Malott defeated all attempts by the Plaintiff to achieve discovery, and then made rude and vicious comments in orders and open court about the Plaintiff showing prejudice and persecution of the Plaintiff.

          The beginning of this matter was only Case CV-12-1307 where the Plaintiff had sued the corporation of NAI Maestas and Ward and all bosses, and the ten other persons that were involved in the assault and battery and conversion. This case involved the cult control and interference with the Derringer marriage by Bosses of Barrie Derringer of Steve Maestas, Debbie Harms and Irwin Harms, and the New Mexico torts of loss of consortium, alienation of affection, interference with a legal marriage, and the attending emotional injury. Judge Malott ruled against all case laws, making a decision not based in law that those torts do not exist in New Mexico in that particular case. This decision was contrary to case law Judge Malott had to support, but could at the outset be seen as “ignorance of the law” by Judge Malott or “inadvertent” legal error. Presented time after time, the case laws were "known" by Judge Malott emphasize that these claims of torts by the Plaintiff “are” torts in New Mexico, and proves that Judge Malott violated his Oath and Canon to defy these laws. The “willfulness” of Judge Malott was not simply ignorant, but Judge Malott realized that he made legal error and instead, Judge Malott maligns the Plaintiff in open court time after time, in what is now perceived as both intimidation and obstruction of justice to lay the blame on the Plaintiff with the statements setting the stage to falsely claim the Plaintiff is "vexatious". “You just don’t like my rulings”. Clearly, it is not a matter of like or dislike or any perceived sour grapes attitude; it is about Judge Malott not ruling with the law of the land, which he does not. On November 26, 2012 the Plaintiff files another law suit against separate parties that are also involved in the loss of consortium, alienation of affection, interference with a legal marriage, and the attending emotional injury  and other torts not included in CV-12-1307, knows as CV-12-10816; and it was assigned to Judge Brickhouse, with no power or control at that time by Judge Malott, although Judge Malott was aware of this law suit in the Second Judicial District Court. After the initiation of CV-12-10816, with yet other torts committed by Barrie Derringer that were separate and distinct, the Plaintiff sought to file another suit against only Barrie Derringer.

COMPLAINT FOR MALICIOUS PROSECUTION, ABUSE OF PROCESS, DEPRIVATION OF 1^ST AMENDMENT RIGHTS, FRAUD, EMOTIONAL DISTRESS, MENTAL ANGUISH, PUNITIVE DAMAGES, AND PRIMA FACIE TORT.

U.S. Federal law enabled David Derringer to file the suit whether or not at any later time it might be consolidated with either CV-12-1307 or CV-12-10816.

United States Code Title 42 Section 1981(a)-Equal rights under the law (a)”Statement of equal rights- All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exaction of every kind, and to no other.”

          On December 21, 2012, the Plaintiff filled out the proper petition for filing without fees in forma pauperis and included proof of public assistance mandating Judge Malott to approve filing. Seen as a new suit to his Defendants in the bribery, Judge Malott blocked and denied David Derringer's legal access to the US Courts on December 21, 2013. United States Code Title 28 Section 453 ".. I will administer justice without respect to persons, and do equal right to the poor and the rich.." Judge Malott violated the Constitution Amendments 4th, 5th and 14th and violations of federal law Title 42 Section 1981(a). US v. Guest, US Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239. ; US v. McDermott, CA2 (N.Y.) 1990, 918 F.2d 319 cert. denied 111 S. Ct. 1681, 500 US 904, 114 L.Ed.2d 76. Judge Malott’s actions in defeating this new suit is directly traceable to obstruction of justice and denial of any more litigation against the Defendants, under a bribery motive and such defeated the Supremacy Clause of the United States Constitution Article VI. Stoneking v. Bank of America, 132 NM 79, 43 P. 3d 1089. ; Home Mortgage Bank v. Ryan, 986 F.2d 372, 375 (10^th Cir. 1993).  Plaintiff David Derringer of CV-12-10816 was able to “amend suit CV-12-10816 before any Defendants answered or filed any dispositive motion so as to incorporate torts of the illegally defeated suit by Judge Malott, and at that time the new torts in the amended Complaint of CV-12-10816 were under the jurisdiction of Judge Brickhouse. Judge Malott continued to block discovery of Defendants needed as parties of the other 10 Defendants in the assault and battery and conversion of February 4, 2012. Hickman v. Taylor, (1947) 329 US 495, 91 L.Ed 451, 67 S. Ct. 385, 34 Ohio Ops 395. 

          In the case of CV-12-10816 the Defendants willfully attempted to peremptory excuse Judge Brickhouse illegally after they had already sought her actions under motion. Plaintiff David Derringer immediately sought relief by Motion to Strike filed only with Judge Brickhouse on April 22, 2013. On April 22, 2013 David Derringer filed a Request for Hearing with Judge Brickhouse, shown in the Case Docket of CV-12-10816 on April 22, 2013, with the specific matters to be heard of:

PLAINTIFF’S MOTION TO STRIKE UNTIMELY ANSWER TO AMENDED COMPLAINT, MOTION TO DENY UNTIMELY PEREMPTORY RECUSAL OF JUDGE UNDER MIS-USE OF RULE 1-088.1(B0, AND MOTION FOR SANCTIONS.

This document and the court record of the court docket entry of April 22, 2013, proves that at no time did Plaintiff David Derringer ever seek any motions or request any hearings of CV-12-10816 from Judge Malott. There was already a hearing scheduled before Judge Brickhouse on April 24, 2013, as indicated on the court docket of CV-12-10816. At no time did the court ever advise the Plaintiff David Derringer that in legal error, the clerks had assigned the case CV-12-10816 on April 12, 2013  to Judge Malott, and the proper venue of the Plaintiff’s Motions were to be heard by Judge Brickhouse. The Plaintiff appeared for the hearing before Judge Brickhouse at 1:00PM as scheduled on April 24, 2013 only then to be notified that the hearing had been cancelled with Judge Malott being newly assigned in legal error by the clerks to the Case CV-12-1307. By his own hand “sua sponte”, Judge Malott wanted the control and power to protect all Defendants, so Judge Malott sua sponte Ordered a “Case Management and Notice of Hearing” Order and notice of hearing that was stamped e-filed on April 20, 2013 and Dated on the back page of April 26, 2013. Judge Malott used the consolidation of the two cases with Rule 1-042 with the hearing to come before the court on May 30, 2013 at 9:00AM in room 710, and Judge  Malott had decided to hear the Plaintiff’s Motion to Strike Peremptory Challenge of the Defendants at that time even though the Plaintiff had requested this hearing properly with Judge Brickhouse. Judge Malott used the Case CV-12-1307 having jurisdictional precedent by time over CV-12-10816. This Order is not contained in the court docket of CV-12-1307 as required in legal and clerical error. This idea was to take entire control and power over any suits involving any of the Defendants by only Judge Malott. However, hearing was held on the Motion to strike the Defendant’s peremptory excusal in CV-12-10816 on May 30, 2013, in which it was ruled by Judge Malott in open court that indeed the Defendants’ peremptory excusal of Judge Brickhouse was in legal error. As a matter of law, at that instant, the Case CV-12-10816 was still proven to be in the jurisdiction of Judge Brickhouse. Therefore as a matter of New Mexico Statutory law NMSA 38-3-9 the Plaintiff was legally enabled to excuse Judge Malott from CV-12-10816 where in the same open court of May 30, 2013 Judge Malott ruled that he would consolidate the cases of CV-12-1307 with CV-12-10816, making the cases “reassigned” only to Judge Malott, enabling the state law to peremptory excuse Judge Malott in both cases due to “reassignment”. NMRA 1-088.1C(2) and NMSA 38-3-9. Plaintiff David Derringer legally and properly filed his peremptory excusal of Judge Malott on May 30, 2013. Judge Malott then lies to the court record in "fraud" that David Derringer sought relief from him by motion filed on April 22, 2013 in CV-12-10816 so as to defeat the peremptory excusal and violated rights under NMSA 38-3-9, when the motion was filed with "Judge Brickhouse". Judge Malott lies to the court record in "fraud" “Given Plaintiff’s prosecution of his own Motion to Strike directed to Defendant Crowe’s peremptory challenge, good cause exists to find Plaintiff’s May 30, 2013 filing was without good grounds, was not in good faith and is vexatious”. In the same order, Judge Malott slanders the Plaintiff and sets the stage to illegally claim that Plaintiff David Derringer is "vexatious" to later claim to dismiss all cases in "sanctions". “Plaintiff has vociferously, voluminously, and repeatedly requested discretionary relief from both these consolidated matters including, most ironically, his Motion to Strike Defendants’ Crowe’s Notice of Peremptory Challenge filed in CV-12-10816 which motion was granted after the hearing.” Judge Malott lies in criminal perjury and fraud to the court record to alleviate his mandate to step down from both cases under New Mexico state law in NMSA 38-3-9 so as to maintain control and power over protection of the Defendants in performance of the bribery that is obvious in regards to the illegal actions taken in behalf of all Defendants. The Plaintiff made no motion under Judge Malott in CV-12-10816 which entirely and legally allowed the statutory right of peremptory excusal of Judge Malott upon “reassignment” of CV-12-10816 within the time frame of 10 days. The exercise of Plaintiff David Derringer’s statutory rights for peremptory excusal of Judge Malott under NMSA 38-3-9 was done the very day of May 30, 2013 that the case CV-12-10816 was reassigned legally and consolidated with CV-12-1307. In the Order of May 31, 2013, Judge Malott willfully does “fraud” to the court record to ensure that he remains on the cases involving all Defendants, when by law he was legally removed by the Plaintiff peremtory excusal under NMSA 38-3-9 by rights of law. Jemez Properties, Inc. v. Lucero, 94 N.M. at 184 n. 1, 608 P.2d at 160 n. 1. ; Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. at 246, 64 S.Ct. at 1001. Judge Malott is making a mockery of the judicial system with criminal acts done by a justice due to his power and position. Monroe v. Pape, 365 U.S., at 184. ;  Mapp V. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (June 19, 1961); Olmstead v. United States, 277 U.S. 438, 485 (1928). Judge Malott’s actions against law to promote destruction of the judicial process is the very meaning of corruption. US v. Kanchanalak, 37 F. Supp.2d 1.  Plaintiff David Derringer has been singled out for persecution, prejudice and his legal use of the US Courts have been blocked by Judge Malott for the bribery performance required of him by the Defendants, of which the circumstantial evidence is overpowering, and of which Judge Malott knows exactly what he is doing, as does also the Plaintiff.  Civil Rights 13.4(2). Judge Malott then blocks any furtherance of discovery in CV-12-10816, emphatically blocking the discovery identity of the other 10 persons involved as Defendants of the criminal assault and battery and conversion of February 4, 2013.  Plaintiff David Derringer has also filed his motion for reinstatement of the original torts of CV-12-1307 that by laws of peremptory excusal of Judge Malott were to be properly held before another justice, requested due to violations of laws by Judge Malott, and to make it abundantly clear that Judge Malott defied the laws not by ignorance or inadvertency, but maliciously, the Motion was denied on 5-13-2013. This clearly established that Judge Malott will defy the law at all cost for the Defendants under circumstances of "bribery". Silva v. Town of Springer, 912, P.2d 304, 121 N.M. 428 1996 NMCA O22 cert denied 911 P.2D 883, 121 N.M. 375 cert denied 913 P.2d 251, 121 N.M. 444 N.M. App. 1996. It became clear that the only way to get rid of the corruption of Judge Malott was to motion the court under NMSA 38-3-3 for the legal ability of a change of venue to finally strip Judge Malott of the power and control to protect the Defendants by their bribery of this judge, so justice could be served by a different judge in a different venue. Plaintiff David Derringer properly and legally filed his Motion for Change of Venue on 6-17-2013. This Motion for a Change of Venue was legally filed under NMSA 38-3-3 and mandated to be approved by Judge Malott, or immediate hearing held. On July 2, 2013, Judge Malott violated New Mexico State Statutory law NMSA 38-3-3 by denying the Plaintiff’s Motion for Change of Venue and Ordered also a denial of any hearing for this mandatory Motion. Weightman v. The Corporation of Washington, 1 Black 39, 50-52 (1862). This undeniably confirmed that Judge Malott had been bribed by the Defendants, and that under no set of circumstances would Judge Malott give up the power and control over the Plaintiff’s cases CV-12-1307 and CV-12-10816 so as to protect all Defendants in  performance of his duties under the bribery contract and defeat the Plaintiff’s legal causes of action no matter what the law and statutory mandates. On 6-17-2013 Plaintiff David Derringer had motioned Judge Malott to recuse for cause due to proven case law, NM Statutory law and Constitutional deprivations and violations against the Plaintiff as well as filed NM Judicial Standards Complaints against Judge Malott which denied Judge Malott the right to hear the Motion to Recuse for Cause himself. The Motion by the Plaintiff also requested that the Motion be heard by a disinterested Judge in a different venue. Instead of honoring law and duties for the recusal motion to be heard by a different judge, Judge Malott scheduled the hearing to be heard by himself, the same corrupt judge of the complaint on September 17, 2013 and denied mandated recusal for cause. The Defendants acted in accomplice and conspiracy with the corruption of Judge Malott, with their bribed justice, and filed a Motion for sanctions under NMRA Rule 1-011 for fraudulent claims that the Plaintiff had filed a pleading not allowed to Motion for a Change of Venue under the New Mexico Statutory laws of right under NMSA 38-3-3. This illegal motion of Defendants of 7-16-2013 is clearly to use the bribed Judge Malott to sanction the Plaintiff illegally to simply dismiss all claims and both cases of CV-12-1307 and CV-12-10816 where there are no violations of Rule 11 by the Plaintiff exercising New Mexico Statutory rights for a change of venue under NMSA 438-3-3. On September 20, 2013 without any hearing, although fraudulently claiming in the order that hearing was held, Judge Malott consummated his bribery and dismissed both Plaintiff's cases with prejudice. A bribed judge, working outside of the law, does not constitute "jurisdiction". Plaintiff David Derringer has made sustained allegations of fraud, bribery, and public corruption sustained in the "pattern of conduct" and court record including criminal matters of "conspiracy against rights", "deprivation of rights under color of law", and "obstruction of justice" that have been performed by Judge Malott that are "provable". Judge Malott brings up other court litigation that either David Derringer is currently or past involvement, of which Judge Malott knows no facts, was not the fact finder of such litigation and simply attempt to use prior or current court litigation against the Plaintiff, when not able to look to other cases to decide this one. Matter of Charge of Judicial Misconduct or Disability, 39 F.3d 374, 309, US App. DC 97. What is really happening here is Judge Malott defaming and slandering the Plaintiff, and attempted use  of criminal “intimidation” simply because the Plaintiff has had to use the court system prior, used illegally to stop due process and dump the Plaintiff simply because he was lawfully exercised his rights under US Code Title 42 Section 1981(a) “to sue and to be parties to suits”. What is really happening here is vicious acts by Judge Malott to punish and persecute the Plaintiff for past and present legal use of the United States Court System of our government in “cruel and unusual punishment” in violations of the 13^th Amendment.  Jones ET UX v. Alfred H. Mayer Co. ET AL, certiorari to the United States Court of Appeals for the Eighth Circuit, No. 645.  Judge Malott has been bribed and uses all means to stop the litigation and protect the Defendants, including lying to the court record. US v. Craft, 105 F.3d 1123 “CA6 (Ky.) 1997. The court intentionally set up the stage to make false claims of "vexatious" litigation by the Plaintiff, and attempts to mis-use that since David Derringer has previously used the courts in matters of "self defense" of filing suits against those that wrong him in torts, that David Derringer should be punished and persecuted for exercising his "rights to sue" under US. Code Title 42 Section 1981(a) and inflicted with "cruel and unusual punishment" under the meaning of the 13th Amendment. In short, the bribery made both Judge Malott, the Defense attorneys and Defendants "above all law" by mis use of power of a public official in the capacity to do so, and used criminal "extortion" to do these acts. Nixon v. Fitzgerald, 457 US 731, 763 (1981).

          This matter of public corruption of a judge has been sent  to many law enforcement agencies to investigate the judicial corruption of New Mexico; FBI Headquarters, Washington, D.C. ; Public Integrity Section, Criminal Division, Department of Justice, Washington, DC; Governor Susanna Martinez; New Mexico Secretary of State; United States Attorney's Office, Washington, DC; New Mexico Attorney General; US Congressman Steve Pierce, Washington, and KOAT-TV, Albuquerque, N.M.. There is a “Ripeness” here that the Mandamus to require Judge Malott to recuse and reassign  both consolidated cases to be heard du novo with a different venue and to remove Judge Malott from the bench permanently for violation of oath and  public corruption. It is also mandated to criminally investigate the Defendants and their attorneys Alain Jackson, Floyd Wilson and Alicia Santos for bribery of a judge and prosecute accordingly for acts  of “conspiracy against rights”, “deprivation of rights under color of law” and “obstruction of justice” against Plaintiff David Derringer. New Energy Econ., Inc. v. Martinez, 2011-NMSC-006, 1149 NM 207, 247, P.3d 286.; Bank of Nova Scotia v. US, 108 S. Ct. 2369, 487 US 250, 101 L.Ed.2d 228 on remand US v. Kilpatrick, 726 F. Supp. 789.; Owen v. City of Independence, US Supreme Court 445 US 622 (1980) No. 78-1779.;
Scheuer v. Rhodes, 416 US 232, 241 (1974); Dennis v. Sparks, 101 S. Ct. 183, 449 US 24, 66 L.Ed.2d 185 “US Tex. 1980.

          The Legislature of the State of New Mexico, The United States Congress and the judicial system have given the Plaintiff  several avenues to get rid of Judge Malott presiding in oppression, corruption and tyranny over my cases in this court; Rules of Civil Procedure NMRA Rule 1-088.1, Federal law Title 28, Section 453, and 455, New Mexico law NMSA 38-3-3, and NMSA 38-3-9, New Mexico Judicial Standards, the New Mexico Supreme Court Petition for Superintending Control, and the Plaintiff has properly exercised all of these Rules, statutes and agencies, and Judge Malott still will not allow the Plaintiff to get a fair and impartial justice in a different venue and imprisons the Plaintiff still in this court room for the benefit of defending the Defendants and preventing proper prosecution of the Plaintiff’s cases in tyrannical bribery to defeat all law where "justice can  never  be served".

Circumstances Making Petition Necessary and Proper.

          The conduct of Judge Malott is both criminal in perjury under oath, is in a total discharge of legal duties under Canon and the Code of Judicial Conduct and has made a mockery of the integrity of the judicial system of our government. SEE: In re Griego 143 N.M. 698, 181 P.3d 690 N.M.,2008 April 11, 2008; In re Castellano, 119 N.M. 140, 149, 889 P.2d 175, 184 (1995); In re Locatelli, 2007–NMSC–029, 11, 141 N.M. 755, 161 P.3d 252 (per curiam) (citing In re Bristol, 2006–NMSC–041, 16–18, 140 N.M. 317, 142 P.3d 905. The New Mexico Supreme Court has jurisdiction over such a Petition for Mandamus concerning criminal and legal violations by a judge that will not obey law to be peremptory excused, recused for cause and will not change the venue for justice to be served. State ex rel. Clark v. Johnson, 120 NM 562, 904 P.2d 11 (1995). In this matter Mandamus to remove Judge Malott serves judicial economy and wherein the appeal process is entirely inadequate due to Judge Malott short circuiting the due process of the Complaint with no available trial wherein an appeal cannot be fairly conducted without proper presentation and prosecution in the trial court denied by a judge acting in total discharge  of the law.  This type of activity has taken the Constitutional rights of David Derringer and corrupted and caused cancerous growth in the entire judicial system, rendering the integrity of the judicial system “mute” which is public corruption that defeats the proper purpose of the courts as designed by Congress.  This court has jurisdiction to exercise its power of superintending control or mandamus to “...prevent irreparable mischief...” State ex rel. Anaya v. Scarborough, 75 N.M. 702, 706, 410 p.2d 732 (1966).; Parratt v. Taylor, 451 U.S. 527, 101 Supreme Court 1908, 68 P.Ed.2d 420 (1981). ; Civil Rights 13.4(2). Without a change of judge and venue where the suits can be properly prosecuted de novo, the Plaintiff is left without due process, without equal protection and without any means of legal redress. State ex rel. Anaya v. Scarborough, 75 N.M. 702, 706, 410 p.2d 732 (1966).

           Real Party in Interest

          The Respondent is a Second District Court Judge that took an oath of office in 2009 to obey all laws and Constitution and be accountable for any violations under “shall” in the Canon and Code of Judicial Conduct, who ignores and defies the law, renders “manipulation” as a way to defeat justice, does a “conspiracy” against the rights of the Plaintiff and is in total discharge of duties and legality under law in sedition and treason under the meaning of the 14^th Amendment Section 3.  

a)                Grounds Upon Which This Petition is Based

          The Respondent Judge Alan Malott  “has knowledge” of all of the  serious criminal acts he is perpetrating on the Plaintiff and has a knowledge of the laws he is breaking of Constitution, Statutory, and case laws, and does so “willfully” and with “malice” due to a proof undeniable of circumstantial evidence of bribery  by the Defendants of CV-12-1307 and CV-12-10816 and their attorneys of Alicia Santos, Alain Jackson and Floyd Wilson. Tyus v. Martinez, 106 Supreme Court 1787, 475 US 1138, 90 L.Ed.2d 333 on remand 800 F.2d 230 “A judge is not only entitled, but also has a duty to take all lawful measures reasonably necessary to prevent the occurrence of a crime in his courtroom.”

FACTS and SUUPPORTING LAW:

Judge Malott had a legal duty to render “justice under law” as prescribed by his Oath, and instead manipulated the law and the Rules of Civil Procedure to insulate and defeat any litigation against the Defendants by “bribery of the Judge by Defendants and their attorneys.  Schultz ex rel. Schultz v. Pojoaque Tribal Police Dept. P.3d, 2013 WL 4499132 N.M.App.,2013 August 19, 2013 “.. had a legal and moral duty, pursuant to statutory authority and his oath” The Defendants had not served the Plaintiff with proper notice of exhibits or witnesses, and in fact did not participate in the hearing Motion to Recuse for Cause of September 17, 2013, other than the appearance of the Defendant’s representing attorneys, because their bribery agreement with Judge Malott already assured their “win” and dismissal of the Plaintiff’s legal tort claims by “public  corruption”. Unknown apparently to the attorneys Alain Jackson, Floyd Wilson, and Alicia Santos, just after the hearing of September 17, 2013 as they were standing outside of the courtroom, they were recorded as laughing at the Plaintiff David Derringer and stating that; "he's (meaning Plaintiff David Derringer) appealing that one too"; "Judges are sick of him"; "he is going from one Judge to the next but he is not going to win"; indicating, since Judge Malott would not make a decision of the hearing until September 20, 2013, that they knew their “bribery” was successful, and they had already won “dismissal” of all claims and that David Derringer would have to further appeal. Clearly, this “knowledge” was due to the ex-parte communication that the Defendants under bribery had with Judge Malott. This “win” was accomplished with both improper motive and improper ‘means’. Dooley v. Quiet Title Co., LLC  P.3d, 2013 WL 4526107 N.M.App.,2013 May 06, 2013; In Kelly v. St. Vincent Hospital, 102 N.M. 201, 207, 692 P.2d 1350, 1356 (Ct.App.1984), this Court noted that the tort could be accomplished by either of two methods: improper motive solely to harm the plaintiff or improper means. If proven, either basis standing alone will support liability. Id. In our most recent case of Zarr v. Washington Tru Solutions, LLC, 2009–NMCA–050, 146 N.M. 274, 208 P.3d 919, we set out the correct standard for a finding of improper means. What may qualify as ‘improper means' depends to some degree on context and can include, but is not limited to predatory behavior, violence, threats or intimidation, deceit or misrepresentation, bribery, economic pressure, unfounded litigation, defamation, unlawful conduct, and perhaps violation of business ethics and customs. There is suggestion of “bribery of judges", employment of counsel to ‘influence’ the court going on here that the circumstantial evidence of everything done by Judge Malott was against all law and to ensure that no Defendant was prosecuted, even in violations of US Code Title 42 Section1981(a) against the Plaintiff to stop another suit against Defendant Barrie Derringer aka Barrie Crowe. The Defendant’s bribery of Judge Malott and Judge Malott’s acceptance and “performance” of the bribery is illustrated well in the court records of CV-12-1307 and CV-12-10816. Bribery is a criminal act on both Judge Malott and the Defendants contrary to NMSA 1978, Section 30-24-3(A)(3) (1997). All Judge Malott’s decisions in these cases and prevention of the additional case to be filed were  predicated on “public corruption” of bribery. Aguilera v. Board of Educ. 137 N.M. 642, 114 P.3d 322 N.M.App.,2005 April 06, 2005 “ where the decision was procured by corruption, fraud, deception or collusion”. There is a clear pattern here of Judge Malott ruling against the law, deliberately “consolidating” CV-12-1307 with CV-12-10816, refusing to be peremptory excused as mandated under NMSA 38-3-9, refusal to change the venue mandated under NMSA 38-3-3, and then illegally dismissing both cases under guises of “sanctions” for violations of  the Motion for Change of Venue, as requested by the Defendants; all the while “obstructing” the Plaintiff from acquiring the identity of the other 10 persons in the assault and battery and conversion under attempts by the Plaintiff under NMRA Rule 1-019, and “the discovery process”. Vigil v. State Auditor's Office, 138 N.M. 63, 116 P.3d 854, 2005 -NMCA- 096, N.M.App., June 01, 2005 (NO. 24,225) “every indication that [a] strong pattern of public corruption existed.”  In fact, the “consolidation” of both cases and the “imprisonment” of the Plaintiff before Judge Malott in defiance of all laws to recuse or change the venue, shows the willful bribery request and performance to keep all cases before Judge Malott and to rule to protect all Defendants from any prosecution by the Plaintiff to “rig” the cases for dismissal without due process. Citimortgage, Inc. v. Giron  P.3d, 2010 WL 3997939 N.M.App.,2010 February 18, 2010 “Defendant argued against consolidation of the cases as an attempt to “rig” the case outcome and as an abrogation of his substantive due process rights.”

3)                Relief Sought:

          For the foregoing reasons, it is respectfully petitioned that this Court issue its Writ of  Mandamus requiring Judge Malott to recuse from CV-12-1307 consolidated with CV-12-10816, rescind his illegal dismissal with prejudice of these cases to be heard by a newly assigned judge in a different venue, and for each case to be started de novo with all original actions of the Complaints by the Plaintiff David Derringer, all available discovery afforded and a proper trial sequence be ensued for justice to be served according to Constitutional laws of due process and equal protection.

Respectfully Submitted by___________________________________________

                   David Derringer Pro-Se, Box 7431, Albuquerque, New Mexico 87194

          CERTIFICATE OF SERVICE  October 1, 2013

I hereby certify that I sent by first class mail 8 copies of this Petition to:

New Mexico Supreme Court

237 Don Gaspar Avenue

Santa Fe, New Mexico 87501

I hereby also certify that I sent by first class mail a copy of this Petition to:

Respondent Judge Malott by way of his secretary hand delivered.

Second Judicial District Court

400 Lomas NW

Albuquerque, New Mexico 87102

I hereby further certify that I delivered a copy of this pleading to:

Attorney Alain Jackson at:

423 6^th St. NW. Albuquerque, New Mexico 87102

Attorney Floyd Wilson for Barrie Crowe, Debbie and Irwin Harms Defendants at:

Floyd Wilson

12480 Hwy. 14 North. Ste. 105

Cedar Crest, NM 87008

Attorney for Geraldine and Warren Crowe:

Alicia Santos of O’Brien & Padilla P.C.

6000 Indian School Road NE Suite 200

Albuquerque, New Mexico 87110