Civil Action #App. Case No. 05-16079 Ninth Circuit Court of Appeals
Last updated 6 Sep 07

Identification to Enter Courthouse Case
Foti v. McHugh
Case No. 05-16079
Case documents are available below in reverse chronological order.

Facts:

Plaintiffs were denied access to a federal courtroom on numerous occasions because they do not own identification and therefore cannot comply with the photo identification requirement to enter the building. Plaintiff Foti was unable to attend court proceedings in which he was representing himself in civil litigation against the federal government. There are two separate federal court cases here, the first completed case where Plaintiffs were not able to attend proceedings because of their lack of ID, and the current case over the ID requirement itself.

On July 9, 2004, Plaintiffs requested an escort to attend Plaintiff Foti?s hearing in a case called Foti v. San Mateo, a case where Robert John Foti was representing himself pro se (without an attorney). The clerk?s office and Marshal?s Service each informed Plaintiffs that it was the other entity?s responsibility to escort them and Plaintiffs were denied entry. On September 10, 2004, Foti requested entry to the building obtain subpoena forms for discovery in his case, but was denied access. On September 24, 2004, Foti was denied access to a hearing in front of Judge Illston in his case because the clerks and marshals refused to escort him. Finally, on November 4, 2004, Plaintiffs requested entry to the courthouse to witness Foti defend himself in the summary judgment hearing. Plaintiffs, including Foti, allege that the Federal Marshal ?came from behind his station, put his hands on both of us in order to push us from the courthouse.? Plaintiff Foti, was therefore unrepresented at the summary judgment hearing and learned of the dismissal of his case from opposing counsel as he was exiting the courthouse. Apart from the Plaintiffs? inability to present the required identification, there is no indication in the record that they displayed any security risk.

Plaintiffs pro se collectively filed this second action, Foti v. McHugh, on June 25, 2004. On February 2, 2005, the district court judge issued an order granting Defendants? motion to dismiss Plaintiffs’ claims. Plaintiffs appealed on May 25, 2005, and the case was again briefed pro se. On June 1, 2006, the Ninth Circuit Court of Appeals appointed Fenwick & West LLP pro bono counsel to represent Plaintiffs and requested replacement briefings. James Harrison, staff attorney for the First Amendment Project, was added as co-counsel for Plaintiffs on September 6, 2006. On September 29, 2006, Plaintiffs?/Appellants’ replacement opening brief was filed. On November 13, 2006, the government filed their replacement answering brief. On December 11, 2006, Appellants filed their replacement reply brief.

Summary of Plaintiffs’ argument:

The district court erred in dismissing Plaintiffs? complaint on the pleadings for lack of subject matter jurisdiction without reaching the merits of their First, Fourth and Fifth Amendment claims. The court below incorrectly held that Plaintiffs? constitutional claims against the governmental agencies were barred by sovereign immunity and their claims against the individual defendants for injunctive relief and damages were barred by qualified immunity. In addition, the court erred by failing to reach the merits of whether an inflexible identification requirement to enter the federal courthouse violated Plaintiffs? First Amendment rights to access the courts, their Fourth Amendment rights against unreasonable seizure, and their Fifth Amendment due process rights. Specifically, the court failed to balance the government?s security interest in protecting the courthouse against Plaintiffs? right to enter to litigate and witness the underlying case. Further, the court erred in not reaching the merits of whether an identification requirement increases security and whether a less restrictive alternative would have protected Plaintiffs? constitutional rights.

This case was argued before the 9th Circuit Court of Appeals on March 27, 2007. On August 28, 2007, the 9th Circuit issued an unpublished memorandum affirming the lower court’s decision to dismiss.

Site last updated: 9/05/07 jph

Case Documents:

9th Circut’ unpublished memorandum dated August 28, 2007

http://www.papersplease.org/_dl/Foti/foti_transcript.pdf

Appellants’ Replacement Reply Brief

Government’s replacement answering brief

Plaintiffs?/ Appellants’ replacement opening brief

Errata to Plaintiffs?/Appellants’replacement opening brief

Court Order appointing Pro Bono counsel

Appellants’ original pro se appeal reply brief

Defendants’ / Appellees’ original opposition brief

Plaintiffs’ / Appellants’ original pro se appeal opening brief

Appellants’ Excerpt of Record (“ER”) – Documents included with the appeal:

ER1 COMPLAINT against Federal Protective Services, McHugh, United States Marshalls Service. Filed by Kenneth Augustine, Robert-John Foti, Joseph Leonard Neufeld. Filed on 6/25/2004)

ER2 ADR SCHEDULING ORDER: Case Management Statement due by 10/21/2004. Case Management Conference set for 10/28/2004 02:30 PM. (Filed on 6/25/2004)

ER3 SUMMONS McHugh served on 6/30/2004, answer due 7/20/2004. (Filed on 7/13/2004)

ER4 SUMMONS Federal Protective Services served on 7/19/2004, answer due 8/9/2004; United States Marshalls Service served on 7/19/2004, answer due 8/9/2004. (Filed on 8/24/2004)

ER5 NOTICE OF MOTION AND MOTION to Dismiss Plaintiff’s Complaint filed by Federal Protective Services, McHugh, United States Marshalls Service. Motion Hearing set for 10/27/2004 09:00 AM. (fb, Court Staff) (Filed on 9/16/2004)

ER6 Declaration of Gerald Auerbach in Support of ER5 filed by Federal Protective Services, McHugh, United States Marshalls Service. (Filed on 9/16/2004)

ER7 Declaration of Carol Lazzaro in Support of ER5 filed by Federal Protective Services, McHugh, United States Marshalls Service. (Filed on 9/16/2004)

ER8 OPPOSITION to defendant’s motion to dismiss complaint and DEMAND for Sanctions and to strike motion and declaratory judgment filed by Kenneth Augustine, Robert-John Foti, Joseph Leonard Neufeld. Motion Hearing set for 10/27/2004 09:00 AM. (Filed on 9/30/2004)

ER9 CERTIFICATE OF SERVICE re: ER8 (Filed on 9/30/2004)

ER10 Reply to ER5 MOTION to Dismiss filed by Federal Protective Services, McHugh, United States Marshalls Service. (Filed on 10/13/2004)

ER11 STIPULATION AND ORDER continuing hearing on motion to dismiss and case management conference, set for 11/10/2004 09:00 AM. Signed by Judge Hamilton on 10/22/04. (Filed on 10/22/2004)

ER12 CERTIFICATE OF SERVICE by Federal Protective Services, McHugh, United States Marshalls Service re ER11 Stipulation and Order, Set Hearings (Filed on 10/28/2004)

ER13 CASE MANAGEMENT STATEMENT filed by Federal Protective Services, McHugh, United States Marshalls Service. (Filed on 11/3/2004)

ER14 FIRST AMENDED COMPLAINT demand for jury trial against Federal Protective Services, McHugh, United States Marshalls Service. Filed by Kenneth Augustine, Robert-John Foti, Joseph Leonard Neufeld. (Filed on 11/9/2004)

ER15 CERTIFICATE OF SERVICE by Kenneth Augustine, Robert-John Foti, Joseph Leonard Neufeld re ER14 Amended Complaint (Filed on 11/9/2004)

ER16 Minute Entry: Motion Hearing held on 11/10/2004 before Judge Hamilton. PROCEEDINGS: Defendants motion to dismiss–HELD. An amended complaint was received by the court just this morning. The court has not had an opportunity to review the amended complaint. Mr. Foti inquired why he was not afforded an immediate emergency meeting as he requested on the face of his complaint. The court will be treating Mr. Foti’s request as requesting injunctive relief with the following briefing schedule: 11/24 Opposition, 12/1/04 Reply. Matter will be deemed submitted on the papers and there will be no hearing. Defendants may file a motion to dismiss the first amended complaint by 11/24/04. Opposition 12/8/04 and Reply 12/15/04. Matter will be deemed submitted on the briefing. There will be no hearing. The case management conference was vacated and will be reset by the Court. Order to be prepared by Court. (Date Filed: 11/10/2004)

ER17 SCHEDULING ORDER signed by Judge Hamilton on 11/10/04. (Filed on 11/10/2004)

ER18 ORDER re filing of an opposition to the motion for summary judgment. Signed by Judge Hamilton on 11/18/04. (Filed on 11/18/2004)

ER19 NOTICE of MOTION for Summary Judgment filed by Kenneth Augustine. (Filed on 11/17/2004)

ER20 MEMORANDUM of Points and Authorities in Support re ER19 MOTION for Summary Judgment filed byKenneth Augustine. (Filed on 11/17/2004)

ER21 Declaration of Ken Augustine in Support of ER19 MOTION for Summary Judgment filed byKenneth Augustine. (Related document(s)[19]) (Filed on 11/17/2004)

ER22 MOTION for Summary Judgment filed by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine. (Filed on 11/17/2004)

ER23 Opposition to Plaintiffs’ request for injunctive relief filed byMcHugh, United States Marshalls Service, Federal Protective Services. (Filed on 11/24/2004)

ER24 NOTICE of MOTION and MOTION to dismiss plaintiffs’ first amended complaint filed by McHugh, United States Marshalls Service, Federal Protective Services. (Filed on 11/24/2004)

ER25 Declaration of Gerald Auerbach in Support of ER24 MOTION to Dismiss filed byMcHugh, United States Marshalls Service, Federal Protective Services. (Filed on 11/24/2004)

ER26 Declaration of Carol Lazzaro in Support of ER24 MOTION to Dismiss filed byMcHugh, United States Marshalls Service, Federal Protective Services. (Filed on 11/24/2004)

ER27 OBJECTIONS to Judge Hamilton’s denial to entertain a Rule 56(a) Motion by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine. (Filed on 11/29/2004)

ER28 NOTICE of Substitution of Counsel for Defendants McHugh, United States Marshalls Service, Federal Protective Services (Filed on 12/6/2004)

ER29 Reply to Defendant’s Opposition to Injunctive Relief for Plaintiffs filed byRobert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine. (Filed on 12/2/2004)

ER30 CERTIFICATE OF SERVICE by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine re ER29 Reply to Opposition (Filed on 12/2/2004)

ER31 Opposition to MOTION to Dismiss re ER24 filed byRobert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine. (Filed on 12/8/2004)

ER32 CERTIFICATE OF SERVICE by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine re ER31 Memorandum in Opposition (Filed on 12/8/2004)

ER33 Reply Memorandum re ER24 MOTION to Dismiss filed byMcHugh, United States Marshalls Service, Federal Protective Services. (Filed on 12/15/2004)

ER34 ORDER denying request for three-judge panel. Signed by Judge Hamilton on 2/2/05. (Filed on 2/2/2005)

ER35 ORDER by Judge Hamilton granting ER24 Motion to Dismiss (Filed on 2/2/2005)

ER36 JUDGMENT. ***Civil Case Terminated.. Signed by Judge Hamilton on 2/2/05. (Filed on 2/2/2005)

ER37 MOTION for Reconsideration filed by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine. (Filed on 2/17/2005)

ER38 CERTIFICATE OF SERVICE by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine re ER37 MOTION for Reconsideration (Filed on 2/17/2005)

ER39 TRANSCRIPT of Proceedings held on 11/10/04 before Judge Hamilton. Court Reporter: Leo Mankiewicz 415-861-2336.. (Filed on 3/30/2005)

ER40 ORDER by Judge Hamilton denying ER37 Motion for Reconsideration (Filed on 5/9/2005)

ER41 NOTICE OF APPEAL as to ER35 Order on Motion to Dismiss, ER36 Judgment, Terminated Case by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine. (Filed on 5/25/2005)

ER42 CERTIFICATE OF SERVICE by Robert-John Foti, Joseph Leonard Neufeld, Kenneth Augustine re [41] Notice of Appeal, (Filed on 5/25/2005) Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re [41] Notice of Appeal, (Filed on 5/26/2005) Copy of Notice of Appeal and Docket sheet mailed to all counsel (Filed on 5/26/2005) Certificate of Record Mailed to USCA re appeal [41] Notice of Appeal, : (far, Court Staff) (Filed on 5/26/2005) USCA Case Number 05-16079 for [41] Notice of Appeal, filed by Joseph Leonard Neufeld,, Kenneth Augustine,, Robert-John Foti,. (Filed on 6/20/2005)

ER43 TIME SCHEDULE ORDER of USCA (Filed on 6/20/2005) Received Document Request from USCA for record on appeal. (Filed on 1/4/2006) Certified and Transmitted Record on Appeal to US Court of Appeals (Filed on 1/5/2006)

Document List