From JP: Interesting case quotes on Fraudulent Concealment, Fundamental Liberties, and Civil Rights

FRAUDULENT CONCEALMENT

 

  1. A few of the definitions of “fraudulent concealment” are discussed in: Woods v. Davis, 11 U.S. 271 (1812) quoting,

 

“Party having superior knowledge who takes advantage of another’s ignorance of the law to deceive him by studied concealment or misrepresentation can be held responsible for that conduct. Fina Supply, Inc. v. Abilene Nat. Bank, 726 S.W.2d 537, 1987. Knowing failure to disclose material information, necessary to prevent statement from being misleading, or making representation despite knowledge that

it has no reasonable basis in fact, are actionable as fraud under [the] law.” Rubinstein v. Collins, 20 F.3d 160, 1990.

 

 

Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud. Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994.

 

When circumstances impose duty to speak and one deliberately remains silent, silence is equivalent to false representation. Fisher Controls International, Inc. v. Gibbons, 911 S.W. 2d 135, 1995.

 

When a person sustains to another a position of trust and confidence, his failure to disclose facts that he has a duty to disclose is as much a fraud as an actual misrepresentation. Blanton v. Sherman Compress Co., 256 S.W. 2d 884, 1953.

 

  1. Petitioner’s right of review under 5 USC 702 statutorily defined:
  1. A person suffering legal wrong because of … or adversely affected or aggrieved … within the meaning of a relevant statute, is entitled to judicial review thereof. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94–574, § 1,Oct. 21, 1976, 90 Stat. 2721.)

 

  1. Neither law nor equity may be invoked to redress a wrong.

The courts should not lend their aid to willful violations of the law.  See

Clouse v. Myers, 753 S.W.2d 316 (Mo. Ct. App. S.D. 1988) See also: Glazier v.

Lee, 171 Mich.App. 216, 429 N.W. 2d 857 (1988); Preston v. State, 152 A.D.2d

943, 543 N.Y. S.2d 823 (4th Dept. 1989; Picture Plays Theater Co. of Tampa v.

Williams, 75 Fla. 556, 78 So. 674, 1 A.L.R. 1 (1918).

 

In Freeman on Judgments, 5th Ed., Sec. 338, pg. 678 it is said:

 

[“There must be some appropriate application invoking the judicial power of the court in respect to the matter sought to be litigated; for such as the filing of a petition, complaint or other proper pleading, for it is this manner that the court’s power over the subject matter is invoked.”]

 

 

“Fundamental” Liberties

 

 

In the parlance of United States constitutional jurisprudence, a “fundamental” right is a civil liberty of paramount importance. Whenever an individual can show that the government is interfering with an exercise of a “fundamental” civil liberty, the government has the burden to prove to a court that the government action can survive the “strict scrutiny” standard of court review.

The strict-scrutiny test upholds state intervention as proper only if (1) an authorizing state regulation exists that can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to the interest the state may lawfully protect, and (4) the tactic used is narrowly tailored and the least restrictive means of discharging the government’s compelling interest.

 

“Non-Fundamental” Rights

 

In contrast to a “fundamental” liberty, other rights are entitled to very limited protection. Whenever an individual can show that the government is interfering with an exercise of a “non-fundamental” civil liberty, [i.e. private-power of attorney contract] the individual has the burden to prove to a court that the government action fails the “rational basis” standard.

The rational-basis test stops state intervention as improper only if (1) the governmental action does not represent a reasonable means to a legitimate state interest, and (2) the relationship between the reasonable means and the legitimate state interest is not at least debatable. The test does not require the government to use the least intrusive or most creative regulatory scheme to achieve legitimate state ends.

 

In the case of Ableman v. Booth, 62 US 506 – Supreme Court 1859.  “complex character of our Government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other.”

 

The 10th Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15th, 1791.  It expresses the principal of federalism, which strictly supports the entire plan of the original Constitution for the United States of America, by stating the federal government possesses only those powers delegated to it by the United States Constitution.  All remaining powers are reserved for the States or the people.  However, once the State incorporates and begins operating in commerce, it loses part of its once dejure sovereign status or what is considered to be a misnomer, operates under its quasi-sovereign corporate defecto alter-ego as a legal fiction, i.e. corpus ficti in exchange for participation for federal grants to the States through fund incentive programs Congressionally approved as b) the instrumentalities of interstate commerce. . . . under PL 89-97 during the 89th session that involve special “demonstration” projects and/or public private contractual arrangements which are nothing more than, “express lanes to abuses” of federally protected fundamental civil rights.

  1. The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature.”

 

  1. He is not bound by any institutions formed by his fellowmen without his Consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70.

 

  1. “The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.”

 

  1. “Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.” (See Hale v. Henkel, 201 U.S. 43 at 47)

 

Many federal question cases have applied state law to issues involving state-created rights where the result were of such application would not be contrary to a strong federal interest. E.g. Helvering v. Stuart, 317 US 154 (1942); Blair v. Comm’r, 300 US 5, (1936); Security Mortgage Co., v. Powers, 278 US 149 (1928); See Prudence Realization Corp v. Geist, 316 US 89, 95 (1942); Huron Holding Corp., v. Lincoln Mine Operating Co., 312 US 183 (1941); Kavanugh v. Fowler, 146 F.2d  961 (6th Cir 1945); United States v. Michaelson, 58 F. Supp. 796 (D. Minn 1945).

However, the interest of the state may not be too great, or in many instances unarticulated. In any event it can be argued that the federal policy of encouraging private anti-trust enforcement would override any contrary state policy.

Our Federal courts have addressed the matter of courts “usurping authority” that is not delegated to them by constitution or statute. See Dellenbach v. Letsinger, 889 F.2d 755 (7th Cir 1989): “Where there is clearly no jurisdiction over the subject- matter, any authority exercised is usurped authority, and for the exercise of such authority, when want of jurisdiction is known to the judge, no excuse is permissible.” According to CHIEF JUSTICE, WAITE in MEYER v. CONSTRUCTION COMPANY; 100 U.S. 457 (____)

 

RULE 81 EXCEPTIONS

A civil action filed in a state court may be removed to federal court [under any one of the enumerated provisions cited below] if the claim is one “arising under” federal law. § 1441(b). To determine whether the claim arises under federal law, we examine the “well pleaded” allegations of the complaint and ignore potential defenses: “[A] suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.

Avco Corp. v. Machinists, 390 U. S. 557 (1968). We later explained that holding as resting on the unusually “powerful” pre-emptive force.  Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd., 463 U. S., at 23–24 (footnote omitted).

“The necessary ground of decision [in Avco] was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” 463 U. S., at 23–24 (footnote omitted).

 

Similarly, in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987), we considered whether the “complete preemption” approach adopted in Avco also supported the removal of state common-law causes of action. Thus, a state claim may be removed to federal court in only two circumstances—when Congress expressly so provides or when a federal statute wholly displaces the state-law cause of action through complete pre-emption. When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U. S. C. § 1441(b), which authorizes any claim that “arises under” federal law to be removed to federal court where the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. Of course, a state claim can also be removed through the use of the supplemental jurisdiction statute, 28 U. S. C. § 1367(a), provided that another claim in the complaint is removable.

 

Title 28 USC § 1331 states:

This so-called “arising under” or “federal question” jurisdiction has long been governed by the well-pleaded complaint rule, which provides that “federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987). A federal question “is presented” when the complaint invokes federal law as the basis for relief.

 

28 U.S. Code § 1443 – Civil rights cases

 

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

 

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

 

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. (June 25, 1948, ch. 646, 62 Stat. 938.)

Petitioner will -reuse- his Prayer for Relief in his certificate of appealability application.

Special Note:  https://www.law.cornell.edu/wex/nonfederal_grounds

 

APPEALABILITY OF CASES ON REMAND

In any event, the appealability of remand orders was reinstated by 28 U.S.C. § 1447 (d) (1964) (originally enacted as Civil Rights Act of 1964, § 901, 78 Stat. 266) (see note 19 infra); Note, 43 N.C.L. REv. 628 (1964). This provision has been upheld by recent court of appeals’ decisions, see, e.g., New York v. Galamison, 342 F.2d 255, 257 (2d Cir.), cert. denied, 380 U.S. 977 (1965), and by the United States Supreme Court, see Georgia v. Rachel, supra at 786-87 & n.7. -9 28 U.S.C. § 1447 (d) (1964) (originally enacted as Civil Rights Act of 1964, § 901, 78 Stat. 266) provides in part: ” an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” There is substantial indication in the legislative history that Congress enacted § 1447 (d) to provide an opportunity for the appellate courts to reinterpret the Strauder-Powers cases. See, e.g., 110 CONG. Rec. 2770, 2773 (1964) (remarks of Representative Kastenmeier, who favored lifting the appeal bar to remand orders); id. at 2771-73 (remarks of Representative Dowdy, who was opposed to lifting the appeal bar); id. at 6551 (remarks of Senator Humphrey); id. at 6564 (remarks of Senator Kuchel); id. at 6955-56 (remarks of Senator Dodd). 20 Compare Baines v. City of Danville, 357 F.2d 756 (4th Cir.), aff’d mem., 384 U.S. 890 (1966), and Wallace v. Virginia, 357 F.2d 105 (4th Cir.), aff’d mem., 384 U.S. 891 (1966), with Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir. 1965), aff’d in part and rev’d in part, 384 U.S. 808 (1966), and Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965), aff’d, 384 U.S. 780 (1966). See Johnson, supra note 17, at 139-49; Note, 44 N.C.L. Rev. 1152 (1966); 44 Texas L. Rev. 200 (1965); notes 95-96, 146, 194 infra and accompanying text. 21 384 U.S. 780 (1966). 22384 U.S. 808 (1966).

Petitioner, Brian Van Akin, submits that he has fulfilled the preemptive requisites necessary to pursuit this claim in federal court. Petitioner has indicated in the last sentence (Initial EMERGENCY Petition) that which fulfills, if not exceeds the plain statement of facts requirement under Title 28 USC 1446(a) allowing this Court to proceed under both federal question and Constitutional & Public Policy Questions whereas both venue and jurisdictional basis have been satisfied as grounds for this Emergency Petition for Declaratory Relief be permitted to advance through this Court the ends of justice, so require.

 

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From LB: Marvin Siegel’s estate dips by 5 million within a few years of being in probate court guardianship

One attorney was billing $200k per year to this estate!
This is horrible and has to end!

ISOLATE, MEDICATE, LIQUIDATE: How to Fleece a Senior

Warning to Seniors: Rich or Poor, You’re Worth a LOT to Lawyers, Courts, and Service Agencies!

by Lonnie Brennan

It started out simply: a retired Boxford lawyer, Marvin Siegel, got along in years, and as he approached his 83rd year amongst his fellow men, he began to slip a bit, needing some help around the house. His family pitched in, and at one point, a service that provided checkups on the elderly would visit with Mr. Siegel and see to his needs.

As time went on, his needs increased and a family member related that it made sense for his youngest daughter, a lawyer like her dad, to move into the family home with her father. (The eldest daughter lives thousands of miles away, and the middle daughter has some “issues” according to her younger sibling.)

Things appeared fine at first, having one daughter, her husband and two of his grandchildren fill the voids in his previously silent home. Dinners together, helping out with laundry care, just watching TV together and bringing joy to Mr. Siegel…Then one day, the grandkids returned home with their mom, and found their grandfather being taken away in an ambulance.

According to statements from the daughter and court documents (and we’re in the process of obtaining more documents, and scrutinizing hundreds of pages of filings and transcripts and listening to the court recordings), the visiting helper felt that Mr. Siegel was in an ill condition, tired and apparently forgetful. She called for an ambulance and he was transported to Beverly Hospital. From there, he was transported to another facility for evaluation, and that’s where the drugging began.

According to his youngest daughter, Mr. Siegel is medicated against his wishes, isolated from her, has had his cell phone taken away from him by his court-appointed guardian, and has 24/7 “guards” (medical providers) with him at his home in Boxford. She notes that within months of the ambulance ride, and the subsequent involvement of court-appointed personnel, she and her family were kicked out of her dad’s home, and she’s been prohibited from visiting with or having any communication with him.

That was five years ago.

Oh, and his bank accounts have dwindled over the past five years, with his net worth apparently oozed away, going from approximately $9 million to less than $4 million, and shrinking.

 

Ah, the money. Follow the money.

And where has that money gone?

As an example, various court documents reveal that one local lawyer, Marsha Kazarosian of Haverhill, billed the retired lawyer’s holdings in excess of $200,000 in just one 12-month period. Apparently, other lawyers and groups associated with the Mr. Siegel similarly drew sums of money from the multi-millionaire, against his expressed wishes.

 Kazarosian billed more than $200K in one 12-month period

Ironically, one of the daughters had initially hired Atty. Kazarosian to help ensure her father’s original estate planning would remain intact. The daughter relates and presented to court an argument that despite a filing by Atty. Kazarosian detailing under oath that the multi-millionaire was fully competent of handling his own personal affairs, something changed. Within a short period of time, Atty. Kazarosian switched teams, signed on to work for a court-appointed guardian for Mr. Siegel, and began working against Mr. Siegel’s daughters.

But wait, it gets better.

Mr. Siegel attempted to fire Kazarosian for going against his wishes, but she refused to be fired. Instead, she took his signed, hand-written dismissal letter and consulted with the court-assigned guardian, Attorney Brian Cuffe. Together, the two – in spite of the letter – agreed that he would keep her on the dole, his team, protecting Mr. Siegel’s estate from his daughters and grandchildren.

 Cuffe

 

Yes, you read that right. To date, two of the three daughters have been accused by the various court-appointed parties and those who have drained money from their father’s estate of taking advantage of their father, specifically blaming the daughters for the loss of funds. What? Why? Because, if the daughters would simply shut up and go along and get along, and not object to the guardian’s and the lawyer’s handling of their father’s funds, then no one would have to go to court to fight the daughters. That way the lawyers would not have to bill such large sums, draining his accounts so quickly. What?

At one point, one of the daughters submitted that she was offered a $100K settlement if she would just simply walk away from her father and his millions. She termed it a bribe, and refused.

Out-gunned, Out-maneuvered

Two of the daughters filed multiple “complaints for emergency and preliminary injunctive relief” against various parties whom they have accused of having a part in the taking of funds from their father. The accused parties have included, but are not limited to the following:

BNY MELLON ASSET
MANAGEMENT, LLC,

BRIAN NAGLE of BNY Mellon,

BURNS & LEVINSON, LLP,

LISA CUKIER, ESQ,

LAURA STUDEN, ESQ.,

TARLOW BREED HART &
RODGERS, PC,

EDWARD TARLOW, ESQ.,

ALBERT DeNAPOLI, ESQ.,

CATHERINE WATSON, ESQ.,

KAZAROSIAN COSTELLO &
O’DONNELL, LLP,

MARSHA KAZAROSIAN, ESQ.,

WALTER COSTELLO, JR., ESQ.,

BRIAN CUFFE, ESQ.,

JAMES FELD, ESQ.,

ROBERT LEDOUX, ESQ.,

MAXA BERID, ESQ.,

BERID & SCHUTZ BANK, LLC,

ELDER SERVICES OF MERRIMACK VALLEY, INC.,

THOMAS BARBAR, ESQ.,

 Barbar

DIANE POWELL, SCOTT DAILEY, MICHAEL SPRINGMAN, with Elder Services of Merrimack Valley, Inc., and individually,

CHERI MYETTE, ESQ.,

MICHAEL NOVACK, LICSW, with ELDER RESOURCES, INC., and individually,

MARY ANN REMILLARD, ESQ., in her official capacity as a State actor and individually, NORTHEAST HOSPITAL CORPORATION, d/b/a BEVERLY HOSPITAL,

WHITTIER HEALTH NETWORK, INC., d/b/a WHITTIER PAVILION,

RICHARD GARMIL, ESQ., in his official capacity with Whittier Pavilion and individually,

MERRIMACK VALLEY HOSPITAL, d/b/a STEWARD FAMILY HOSPITAL, INC.,

DR. JANICE FUNK,

DR. PING CUI,

PIERCE & MANDELL, PC ,

BRANDON SAUNDERS, ESQ.,

DR. KAI HAYES,

DR. ROBERT PORTNEY,

DR. PETER W. COHEN,

KENNEY ENTERPRISES, LLC,  d/b/a RIGHT AT HOME,

BRENDA WOJICK, R.N., in her official capacity with Right At Home and individually,

SHERYL SIDMAN,

ALAN SIDMAN,

COMMONWEALTH OF MASSACHUSETTS

But the family notes that they are out-gunned, out-financed, and at every turn out-maneuvered. The lawyers they have gone up against, and the corporations, and those (Cuffe and others) who can use their own money as well as their multi-millionaire’s father’s money against them have had a clear advantage. And the courts have not been kind to the daughters.

Indeed, in one rebuke, the daughters were apparently slammed by the courts for excessive filings. “We’ve been hit with judgments because we’re fighting these people and have submitted too much paperwork, can you imagine?” daughter Lisa Siegel Belanger related. “I submit the documentation because I don’t want this to be about our opinion, or who is credible or not credible. I submitted the documents so that anyone who cares can read them and rule on the facts. The facts are there. The documents show what they have done, how they are drugging, isolating, and draining my father’s funds.”

To summarize the case, which has been in and out of probate court, and pending now in new filings, the family wrote the following:

“With well-established circumstances, Attorney Siegel memorialized his own unequivocal intentions and desires in a panoply of executed estate planning, he explicitly designated his youngest daughter, Attorney Lisa Siegel Belanger, as his attorney-in-fact and his eldest daughter, Devora Kaiser, as successor attorney-in-fact. The two outmost important things Attorney Siegel cared about was: 1) his reputation and dignity and 2) his three (3) daughters.

Through a convoluted vortex of circumstances, on August 4, 2011, multi-millionaire Attorney Siegel was thrusted under a court appointed guardianship and conservatorship, unlawfully ending up with judicially deemed ward of the Commonwealth on August 17, 2011.”

With their father’s wishes being ignored, and getting no relief from probate court, the daughters had attempted an appeal to federal court. One portion of the transcript notes a daughter stating: “This initially starts off before that where my father, Attorney Siegel, had his established durable power of attorney and array of estate planning instruments for a long and continuous [time]…we’re here because of the fraudulent ouster and dismantling of that durable power of attorney.”

In English, that means that the daughter is accusing and presenting evidence that those in power – from the doctors to the hospitals to the lawyers entrusted with handling her father’s estate, dismantled years of estate planning instruments, stripped away all powers from the multi-millionaire, began a process of administering various drugs, have aided in isolating him from his family, and have been a party to draining his estate.

On page 31 of 97 of just one filing, the family states that a lawyer, cognizant that Mr. Siegel was being “involuntarily drugged with antipsychotics,” did “surreptitiously, through fraud and deception…” secure a signature from Mr. Siegel which set off a chain reaction, undoing years of his estate planning, while Mr. Siegel was in a psychiatric facility for two days of evaluation. The results of the evaluation showed no psychiatric issues and Mr. Siegel was subsequently released to his home.

EDITOR’S NOTE: While our team continues to acquire, inspect, assess, and evaluate the copious documents related to this case, we have been given two warnings which we have been instructed to relate to our readers:

1.  All parties on both sides are presumed innocent until proven otherwise, through all appeals processes.

2. Seniors who don’t have millions of dollars are similarly at risk. Why? Because they may be worth tens or hundreds of thousands of federal or state dollars in Medicaid or other government programs, and that any assets they may have may similarly be subject to plunder by those who are unscrupulous.

We’ll relate more on this case, and others, in future issues of the Boston Broadside.

From ND ILL Fed Ct–Changes to Rules re: filing of Answers and Motions to dimiss

Apparently a Mandatory Answer with a Motion to Dismiss is no longer required.

The Northern District of Illinois launched a Mandatory Initial Discovery Pilot (“MIDP”) on June 1, 2017.  The three-year pilot has now been in effect for 18 months, and the judges of the district have decided to modify it slightly.

During the first 18 months, the MIDP has required parties in civil cases to file answers to complaints even when they file a Rule 12(b)(6) motion to dismiss or similar motion.  Answers are not required if motions to dismiss assert jurisdictional or immunity defenses.  As you know, answers trigger the 30-day period for the exchange of MIDP responses.  The MIDP requires these early answers to ensure that MIDP responses are exchanged at the outset of the case.

Effective December 1, 2018, the MIDP will be amended to provide that answers are due under the time periods established by Rule 12(a).  Rule 12(a)(4) provides that answers need not be filed while a Rule 12 motion is pending.  As a result, answers no longer will be required — and the MIDP response period will not be triggered — while a motion is pending under Rule 12(b)(6) or any other provision of Rule 12.  Under Rule 12(a)(4), even if a motion to dismiss is filed, the Court retains authority to order an answer and/or permit the parties to make Rule 26(a)(1) initial disclosures and commence discovery under the Federal Rules of Civil Procedure.

The District is making this change in response to comments suggesting that the early-answer requirement of the MIDP imposed unnecessary costs on parties who ultimately succeed on Rule 12 motions.  Making the change midway through the MIDP will also allow the FJC to evaluate both approaches to mandatory disclosures.

The Standing Order Governing Mandatory Initial Discovery Pilot Project and related documents will be amended to reflect this change.

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From JP: Case Law on pro se litigants

this is for when you’re pro se and screw up a bit.

The courts should help you out, at least a bit.

Due process issue unique to pro se litigants is what role the Rules of Civil Procedure should play. The Rules attempt to define a fair method of procedure, but an unrepresented litigant kindly asks for exceptions because when applied the method of procedure needs to be learned. In effect, courts liberally interpret the Rules to the benefit of pro se litigants. As described above, this is supported by Rule 1, which states that courts should consider the goals of fairness, speed, and cost, and Rule 94, which allows the rules to be relaxed or dispensed with when necessary. Since the plaintiff is attempting proper procedure in good faith, I ask the court to grant this leave to file a proper objection found in prior judgment. However, the Rules also place a premium on uniform treatment. The Alaska Supreme Court has noted that the Rules were promulgated for the “specific purpose of giving fair and reasonable notice to all parties of the appropriate procedural standards that should be uniformly applied when any party, including a pro se litigant, seeks relief in [civil litigation].” Reconciling the preference for efficiency and fairness with the preference for uniformity creates problems when applying the Rules to pro se litigants. Another source of difficulty stems from the diverse population of pro se litigants. For the represented litigant, the judge can rely upon a set of expectations of what the attorney will know. With a pro se litigant, on the other hand, the judge is likely unaware of how much legal knowledge any particular pro se litigant has. Thus, it is unclear what degree of leniency is necessary to permit a fair result for a particular unrepresented party. For this reason the court must allow pro se litigant to correct his prior pleadings.

Non lawyers do not have the same know how as lawyers and are left Technically Challenged:

Even though the pro se litigant took on the court procedure by himself, the plaintiff is not to be held to the same standard as a lawyer. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 Pro se pleadings are to be considered without regard to technicality; pro se litigants’ pleadings are not to be held to the same high standards of perfection as lawyers. The plaintiff just would like a fair shake at reaching justice since abused by the court.  Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

“Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment.” Since the prior error was not intentional, and no party would be prejudiced, this court should grant the relief requested.  Just because Plaintiff is pro se, no punishment come to the plaintiff for that reason alone. Sherar v. Cullen, 481 F. 2d 946 (1973)

“There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.”

From Joanne;

I hope this helps some pro se litigants.

I have some more articles on pro se leniency on this blog.

From FB: Chicago’s Homan Ave Police station riddled with police violence and torture–demand it be shut down!

Documents disclosed in Guardian lawsuit reveal for first time how Chicago police used punches, baton blows and Tasers at the off-the-books interrogation site

‘I was struck with multiple blows with open and closed fist by two officers ... I felt my face start to swell and deform instantly.’
 ‘I was struck with multiple blows with open and closed fist by two officers … I felt my face start to swell and deform instantly.’ Illustration: Jan Diehm for the Guardian

Internal documents from the Chicago police department show that officers used physical force on at least 14 men already in custody at the warehouse known as Homan Square.

Police used punches, knee strikes, elbow strikes, slaps, wrist twists, baton blows and Tasers at Homan Square, according to documents released to the Guardian in the course of its transparency lawsuit about the warehouse. The new information contradicts an official denial about treatment of prisoners at the facility.

The injured men are among at least 7,351 people – more than 6,000 of them black – who, police documents show, have been detained and interrogated at Homan Square without a public notice of their whereabouts or access to an attorney.

None of the men identified in these newest documents had fled custody or were injured in the course of a lawful arrest. All were subject to force by Chicago police officers after they were already in custody at Homan Square. According to depositions with officers and more than two dozen first-hand accounts, handcuffing is standard. Police applied force to some arrestees sufficient enough to warrant hospitalization.

Some of those injured by police inside Homan Square told the Guardian they had experienced chronic pain or impairment years later. One said he was instructed by police to lie about his strangulation, which police claimed on an official form resulted from the already handcuffed man “manag[ing] to put another flex cuff around his neck”.

The Chicago police department, now under federal investigation after suppressing video evidence of its lethal shooting of 17-year old Laquan MacDonald, last year took exception to the Guardian’s reporting about the Homan Square warehouse.

While the department conceded that it uses the warehouse headquarters for the organized-crime bureau as a site for conducting “interviews”, it “unequivocally” denied using violence on detained men and women.

“The allegation that physical violence is a part of interviews with suspects is unequivocally false, it is offensive, and it is not supported by any facts whatsoever,” the CPD insisted on 1 March 2015.

Yet facts supporting the claim for at least 14 men were contained in police files at Homan Square itself. They were released after the Guardian sued under Illinois’ freedom of information law for extensive documentation about the detentions and interrogation practices of the warehouse.

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 ‘The business going on at Homan Square is like nothing else’ – video

Documents released to the Guardian include the account of a man who died in police custody under questionable circumstances. His family and friends, supported by an independent autopsy that materially differs from the one Cook County performed, believe the police killed him and covered it up. The Guardian will tell his story tomorrow.

The documents include hospitalization records and a standard form documenting the use of physical force called a Tactical Response Report. The form includes a follow-up review conducted by a superior officer. In all cases obtained by the Guardian, the reviews found the use of force to be justified, even when the officers did not interview the victims.

One case described in the documents reveals that a man was Tasered in Homan Square and had to be treated at Mount Sinai hospital.

According to two Tactical Response Reports, the man represented an “imminent threat of battery” and performed an “attack without weapon”. Police listed that attack as “swinging arms” and “kicking legs”. One of the forms details that police “restrained the offender legs”.

A lieutenant who reviewed the case “concluded that the member’s actions were in compliance with department procedures and directives”.

One week later, police hit another prisoner who was listed as an “assailant” launching an “attack without weapon”, namely “spitting blood”. His subsequent hospitalization was described as “for injury that occurred at the Homan Square police facility and not as a result” of his actual arrest. A reviewing officer wrote that the “arrestee stated he was not fighting with arresting officer. Arrestee stated he did not assault anyone.”

Another Homan arrestee who “had to be carried and again spit on and struck and kicked officers” was punched, “placed in an armbar” hold, and subjected to a “take down/emergency handcuffing”, a procedure to force someone to the floor.

A fourth man, arrested for marijuana possession, was punched in custody at Homan Square, to the point where the officer conceded on the form that the man was injured. It was said he “grabbed the officer’s leg”.

A Tactical Response Report from the Chicago police department.
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 A Tactical Response Report from the Chicago police department. Photograph: Chicago Police Department

A fifth man, taken to Homan Square on 4 July 2014, was struck in the knee after he “flail[ed] arms and body”, according to the documents. An interview with the review officer recorded the man saying “he was tired of the streets and started crying … he was tired of letting his family down and he was selling drugs because he was homeless. Subject stated he was sorry for resisting the Officer and is just tired of jail.” The review officer concluded the knee strike was “in compliance with department procedures and directives”.

In a statement to the Guardian, the Chicago police department said: “The Chicago Police Department takes allegations of excessive force very seriously. In Chicago, all use-of-force cases require extensive documentation using the tactical response report. These cases are then vigorously investigated by an external, civilian-led agency known as the Chicago Independent Police Review Authority (IPRA). We stand behind our initial statement and our unwavering commitment to the highest levels of accountability and professional standards for our officers.”

Other incidents described in the newly released documents raise questions about the veracity of the police accounts.

A hospitalization case report from the Chicago police department.
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 A hospitalization case report from the Chicago police department. Photograph: Chicago Police Department

On 27 December 2001, Mark Rideaux, then 40 years old, took “someone from the block to pick up some drugs”, he remembers. Unbeknownst to Rideaux, an undercover officer was standing in line to buy drugs, and on his way back, police stopped the car he was driving. It was stolen. Police took him to Homan Square.

Rideaux was secured by his left wrist to the wall of a second-floor cell. What Rideaux said happened next directly contradicts a highly unusual account that police at Homan Square placed on an official report.

Mark Rideaux.
 Mark Rideaux. Photograph: Illinois Department of Corrections

According to the hospitalization case report, disclosed to the Guardian as part of its lawsuit, a desk officer “heard a scream” coming from the cell and found Rideaux “unconscious” from a “self-inflicted” injury.

“While in custody, victim, having one hand (left) cuffed to wall with a flex cuff, managed to put another flex cuff around his neck,” an unspecified officer’s report states. Police cut off the cuff and sent him to Mount Sinai hospital for treatment.

Rideaux tells a far different story.

Letter from Mark Rideaux.
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 Letter from Mark Rideaux. Photograph: Mark Rideaux

In his Homan Square cell, an officer aggressively questioned him about guns and drugs until things got “out of hand”, he remembered.

“I did not recall what I said that made him so up-set, but thats when he [put] the Flex-Cuff around my neck,” Rideaux wrote to the Guardian from prison, where he is serving a narcotics sentence.

“All I remember is waking up on the floor of the cell. and them saying that I try to kill myself. I was taken to the hospital and was told it would be in my best interest to go along with the story! So being afraid, I did what I was told.”

Officers took Rideaux from his Mount Sinai hospital bed to the notoriously violent Cook County jail. Despite the jail’s reputation, Homan Square hung over Rideaux’s head.

“I was told that I would have to go back to Homan Square if I [didn’t] keep my mouth shut!! So I did, and that’s the story.”

More than 12 years later, as police were arresting 22-year-old Dwand Ivery on a drug-distribution charge, one officer suspected Ivery had swallowed the illicit evidence. His response was to choke Ivery into spitting out “whatever it was he believed I ingested”, Ivery recalled in a letter to the Guardian from prison, with the officer’s partner, the driver of their vehicle, urging him to stop, “telling him ‘not outside’”.

CPD’s Tactical Response Report on Dwand Ivery
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 CPD’s Tactical Response Report on Dwand Ivery (A/OS: arresting officers; Unit 189: Homan Square-based narcotics unit). Photograph: Chicago Police Department

As they drove to Homan Square, the officer, still convinced he could get Ivery to spit out drugs, used a metal object “in the shape of a short ink pen” as a tongue depressor “while applying pressure to my stomach with his left elbow”. He pressed down on the back of Ivery’s neck, effectively folding him over. “He held my head in that position until we reached the garage of Homan Square police station,” Ivery wrote, and despite his vomiting, “no drugs was never recovered”.

Ivery has asthma issues, he said, and the pressure on his stomach, neck and throat had caused him to continue vomiting. He was having trouble breathing. As the car pulled into Homan’s garage, he refused to get out and demanded the officers take him to the hospital. Additional officers rushed over – not to aid Ivery, but to restrain his legs. “I was cuffed around my ankles and [dragged] upstairs and placed in a cage,” he recalled.

The police version describes the incident somewhat differently: “Ivery was aggressive in the transport vehicle, yelling, attempting to kick A/Os [arresting officers] and headbutted A/O [redacted] in the backseat. Ivery spit on all A/Os in the vehicle. At Unit 189 [the Homan Square-based narcotics unit] Ivery had to be carried and again spit on and struck and kicked officers.”

From his “cage”, Ivery was moved into an interrogation room and cuffed to a metal bench. When the officers told him to stretch his legs straight out so they could remove his shoes, Ivery again refused and demanded medical attention. According to Ivery’s account, the police turned violent.

Letter from Dwand Ivery
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 Letter from Dwand Ivery. Photograph: Dwand Ivery letter

“I was struck with multiple blows with open and closed fist by two officers. My shoes was eventually removed and they began to strike me in my head and face area with those as well. I felt my face start to swell and deform instantly. This lasted for multiple minutes,” he wrote, until a plainclothes officer, hearing the commotion, went over to the interrogation room and told the cops Ivery had had enough.

Ivery recalled being left alone for the the next three to four hours before the plainclothes officer returned, asking if Ivery wanted “to help myself out”. Ivery requested a phone call and an asthma pump.

“He told me if I give him a address of a house that I knew had drugs and or guns in there he could turn the info over to the state prosecuter and they would release me. I didn’t have that type of information,” Ivery wrote.

Left by himself at Homan Square for what he estimates was another “2-3 hours”, Ivery recalled that he “constantly screamed” for medical attention and a phone call. Like hundreds of others, he instead was taken to the nearby formal police district station at West Harrison Street and South Kedzie Avenue for booking. But the booking officers there “refused to accept me [due] to my condition and the deformation of my face”, he wrote, and insisted they couldn’t book Ivery until he received medical attention.

The police report on Ivery acquired by the Guardian bears that out: “Subject is currently being treated at St. Anthony’s hospital,” it reads.

Checked boxes on the Tactical Response Report describe the police’s repertoire of force. The boxes checked for Ivery’s behavior are: “Did Not Follow Verbal Direction”, “Stiffened (Dead Weight)”, “Pulled Away” and – regarding a man restrained at the wrists and ankles – “Imminent Threat of Battery” and “Attack Without Weapon”. Other boxes are checked to indicate that an officer out of uniform suffered an injury.

The police officers’ responses are described through checked boxes as well: “Member Presence”, “Verbal Commands”, “Escort Holds”, “Wristlock”, “Armbar”, “Open Hand Strike”, “Take Down/Emergency Handcuffing”, “Closed Hand Strike/Punch”.

The form also includes a review by a senior officer into the incident. While the name of the officer is redacted, he or she concluded “the officers used reasonable force to effect the lawful arrest of the assailant/suspect” and the force used was “in compliance with department procedures and directives”. The reviewing officer did not interview Ivery.

The beating “leaves me with a deformed face, lack of vision in my left eye and multiple mental health problems that I now have to be medicated for, including anxiety and depression”, Ivery wrote to the Guardian. “That situation changed my life in a number of different ways.”

Zach Stafford in Chicago contributed reporting.

From NL: how do I write a summary judgment motion and what is that?

I have to tell you, most law school grads don’t know how to write one either, so if you are pro se, don’t fret this.

The stages of litigation, for your background info are this 1) file and prepare complaint; 2) draft up written discovery to your opponent(s) which will be interrogatories (fancy word for questions), requests for documents and requests to admit; 3) get back answers (if you don’t, you have to file a motion to compel and maybe a rule to show cause); 4)  depositions of fact witnesses (you will likely need a lawyer for this, get one cheap and limit his or her representation to just your depns); 5) experts.  hire a expert if needed or helpful.  they will produce a report.  your opponent will likely then get an expert.  if there are depositions, get a lawyer, just for those, you will likely not know how to make objections and preserve testimony for trial, plus lawyers know how to ask the really incisive (annoying) questions; then you have to do your trial prep and 6) hire a lawyer for trial.

This will keep things cheap unless you can find a contingency fee lawyer.  But due to corruption in the courts, your chances of getting that are slim to none. This is because you will need an honest lawyer that can’t be paid off.  Many lawyers can be paid off (sad to say).  And your lawyer must be honest enuf they won’t every bribe anyone. So that means your opponent in the current environment will be at a disadvantage because in our current system, we don’t test for psychopaths with a PET brain scan, so your opponent will bribe, but you and your lawyer will not.  So you will often be pro se fighting a difficult system.  But we have to do it to clean up the current system. Take everything to a jury trial. Do not settle or you are just a hypocrite too.

At the first stage of the trial, and after depositions and discovery is all returned, you may wish to file a Summary Judgment Motion and/or Judgment on the Pleadings.  You can really file both, and they’re pretty much the same.  That’s two bites at the apple.  Many lawyers do not do this, but you can.

What you are saying is that your opponent found no credible evidence of anything and you are entitled to judgment as a matter of law.

How to write  Summary Judgment Motion:

  1.  Write an introductory paragraph.  This will say what litigant is filing it (name and if you are plaintiff or defendant or a cross claimant, etc.) and your best reasons (use 3 to 5) of why you are entitled to Summary Judgment as a matter of Law.
  2.  Next is your “Statement of Facts”.  You do this in the following format:  “1. on X date, this happened.  2. on Y date this happened.”  You might want to include the procedure in the portion of your Motion, or you might want to do a separate “Statement of Procedure” to bring your judge up to date.  Remember you write these pleadings for an appellate judge or a new judge.  Don’t skip over facts because you think “the judge knows my case, s/he knows me”. Forget that nonsense.  The judge has 20 other cases per day, they are elderly and likely have short term memory loss and bad eyes.  Tell your story. Don’t skip this important part.  Your judge can be diagnosed with cancer or heart disease any day. Write like you are writing for the appellate court or a new judge every time you file a Motion.
  3. Motions are supposed to be in short, concise numbered paragraphs. They are short (3 to 5 pages).  Put your details and case law in a Brief to accompany the motion.  If the judge or court has a page limit, be sure to stick to that.  But most judges get tired of reading after 15 pages, so 15 pages of great concise writing is a laudable goal.
  4. Tell the court why you are entitled to Summary Judgment as a matter of law. Look at the complaint.  Do they have all the required elements of each cause of action to go to trial.  Look at your case law.  They should have pulled 2 to 3 cases at the time you prepared your complaint to find the elements for each tort.  Find cases that say they are missing one or more elements.
  5. MOST IMPORTANT.  A clear list of undisputed facts that will entitled you to summary judgment.  You can put this as an exhibit.  Make your opponent dispute this.  All you need is just ONE disputed material fact to get before your jury.  So look at the depositions and affidavits filed. Come up with your own affidavits to dispute some facts.

I have seen some really terrible SJM motions.  You have to be clear about what is undisputed. SJM’s are not favored; jury trials are.  Or at least in theory.

If you are defending a SJM, come up with disputed facts and put them in an affidavit or declaration.

Whatever court you are in (federal, state, etc.) read the rules before submitting any pleading. There are generally specific rules for Summary Judgment Motions. Read them carefully before filing your pleading.  Law is all about following rules.  Someone with a weak argument can easily win over good case law with no compliance with rules.  No compliance with rules can easily tick off a judge into oblivion and win your case.  Remember, judges are often perfectionist entities who went to law school with tons of reading and tons of deadlines and case law. they want you to be conservative about this and perfect in your pleadings.

In Illinois, always file verified pleadings.  Once one pleading is verified, your opponent must also verify pleadings.  If they don’t, ask to strike or dismiss the pleading.

Always do a Notice of Filing, a Certificate of Service and Verification at the end of your pleadings.

Good Luck

Email me if you have questions and I will be glad to do a general blog post in response.

Joanne