United States District Court Judge Shira ScheindlinUNITED STATE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Case No. 08-CIV-3305-SAS
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PAMELA CARVEL,
Plaintiff,
MOTION FOR RECONSIDERATION
-against-
NEW YORK STATE; et al
Defendants.
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HONORABLE JUDGE SHIRA A. SCHEINDLIN, U. S .D. J
PLAINTIFFS’ MEMORANDUM FOR RECONSIDERATION
OF THE COURT'S AUGUST 8, 2008 OPINION AND ORDER
PLAINTIFF Pamela Carvel, appearing pro se because of lack of funds, moves pursuant to Local Civil Rule 6.3, for reconsideration of the Court's August 8, 2008 Opinion and Order (the "Order") whereby the Court dismissed all cases related to Anderson v. State of New York (07 Civ. 9599 (S.D.N.Y.) based on overlooked, misunderstood, or misperceived underlying grounds for the Complaint.
BASIS FOR RECONSIDERATION
1. Pursuant to Fed. R. Civ. P. 6(a) and rules 6.3 and 6.4 of the Local Civil Rules of the Southern District of New York, (see here for an analysis in another case) this request for reconsideration is timely, as it submitted within ten business days of the date of the docketing of the Opinion and Order.
2. Reconsideration is warranted where the Court overlooked controlling decisions or factual matters that might have influenced its prior determination on a matter at issue (See Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2004); Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
3. There were not yet answers to Plaintiff’s Complaint. There was not yet a Motion to Dismiss. In fact, not all Defendants have been served yet with the Amended Complaint.
4. The underlying facts and requests for relief perceived by this Court are flawed. As a result the application of controlling decisions were not accurate as further described below.
5. This memorandum in support of reconsideration is written Pamela Carvel on behalf of her Amended Complaint; however, because dismissal was used for all cases accepted by Judge Scheindlin as “related” to Anderson, Pamela Carvel refers to “Plaintiffs” collectively. Pamela Carvel incorporates by reference all previously filed papers.
FEDERAL QUESTIONS EXIST
6. When Citizens can no longer trust the veracity of their State government, “officers of the court”, and state judge-made laws or regulations to uphold every citizen’s guaranteed rights, then it is the protections of the U.S. Constitution and U.S. laws to which Citizens are supposed to turn through the superiority of U.S. District Court to enforce guaranteed rights over State manipulations and violations.
7. Clearly the pressure to effective and rapidly silence corruption complaints (particularly by pro se litigants) is all-encompassing in the State court system, and apparently the District Court as well. The demand by Magistrate Peck that the Anderson case be “settled” and not go to public trial was the first indication that pressures from behind the scenes were not going to permit true revelation of the full extent of the damages caused by disloyal state employees ad other lawyers who deprived Citizens of the intangible right to honest services, or who colluded for individual profit from the deprivation of Plaintiffs’ guaranteed rights.
8. Plaintiffs, individually and collectively, accumulated irrefutable evidence of collusion between judges, law enforcement, state agencies, and certain “influential” lawyers who seek to improperly profit at Plaintiffs’ expense.
9. The lawyers against whom damages are sought had numerous ethical complaints filed, all of which asserted similar violations of the mandatory disciplinary regulations.
10. Anderson, and the dismissed cases accepted by Judge Scheindlin as related, had the potential of unmasking State employees who (along with other lawyers) personally benefited from violating their oaths of office.
11. Discovery in the public record has the potential of bringing forward more State employees as whistleblowers (including judges) – employees who now live in fear of being fired under the State system, as was Christine Anderson.
12. Plaintiffs disclosed evidence of extortion tactics used by “professionals” (lawyers as well as lawyer-judges), threats to silence victims, intimidation to eliminate claims, as well as Misprision of Felony and Misprision of Treason resulting in multi-million tax fraud, and felony murders.
13. Without a fair and objective trial in U.S. District Court of the substantive Constitutional and civil rights issues, including demonstration of offenses with the documentary evidence, systemic State corruption becomes Law of the Land, superior to all Constitutionally guaranteed rights and contrary to all U.S. Codes.
14. Pamela Carvel and other Plaintiffs demonstrated the improper tactics used to sidetrack the normal course of justice so that there are no decisions, much less appeals. This side-tracking is done i) by alleging an issue to be set for trial, and then withholding trial for years (routinely over TEN years in Surrogate’s Court); ii) by denying trial by jury; iii) by rendering decisions by transcript so that they cannot be appealed; iv) by failing to give notice to named interested parties; v) by failing to stay proceeding upon the death of a party; vi) by proceeding with orders and decisions without formal substitution of party and without notice to all named interested parties; vii) by providing one-sided funding to fiduciaries who are “friends” of the judge while denying equal funding to fiduciaries who support the victims who are the legitimate asset owners; viii) by threatening the elderly into capitulation by threats to withhold all income necessary for life itself; --- to name but a few of the tactics consistently being used by lawyers and State employees.
15. Such tactics violate equal rights and other guaranteed rights that are explicitly protected by U.S. Constitution and U.S. laws cited in the complaints and herein. Such violations make these complaints federal questions correctly before U.S. District Court.
PREMATURE ACTION TO DISMISS
16. Pamela Carvel had not yet served all Defendants when her Complaint was summarily dismissed without motion. Most Plaintiffs do not have answers to their complaints, let alone motions to dismiss in their cases entirely.
17. Dismissal at this stage is premature without discovery and opportunity to amend pro se complaints.
18. “The problem with answering or moving is that neither stays discovery, as you know, in federal court. So even if you make a motion on behalf of all defendants to dismiss, that's not an automatic stay.” (Judge Scheindlin to Assistant Attorney General Adlerstein, Transcript 10:6-10, Anderson, December 12, 2007).
19. This Court was not asked to supervise the departmental disciplinary committees.
20. This Court was asked for injunctive relief in the form of a Federal Monitor after years of evident abuses to prevent continuing abuses and violations of guaranteed rights, and to prevent the destruction of evidence.
21. Plaintiffs complain about systemic corruption by lawyers as individuals acting beyond legal limits. As such individuals, the Office of the New York State Attorney General should not be defending the acts of these individuals as State employees.
22. The Attorney General cannot both protect Citizens from official corruption while at the same time defending accused employees against Citizens who complain. This is an irreconcilable conflict of interests that necessitates an objective third party to monitor these proceedings.
23. It is within the authority of this Court to appoint a Special Master, Federal Monitor, and to issue all writs necessary for the injunctive relief to protect victims of civil rights abuses by state employees and other lawyers under color of state law.
24. Title 28 U.S.C. §1651(a) provides, in pertinent part, that the federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
IMMUNITY IS MISPLACED
25. Pamela Carvel (and other Plaintiffs) does not seek monetary damages to be paid out of the State Treasury. Much to the contrary, Plaintiffs assert that employees who abuse their official positions for personal gain for themselves or other individuals have defraud the State and Citizens of the intangible right to honest services, violated their oaths of office, violated the mandatory regulations of the legal profession, and colluded in other crimes against public policy. Such betrayal by employees should cause the return of all ill-gotten salaries while acting contrary to the oath of public office. Plaintiffs seek damages from individual lawyers, not from the State.
26. The United States Constitution does permit this Court to review the decisions of the EMPLOYEES of New York State (and other lawyers).
27. Supreme Court found in Jett v. Dallas Independent School
District (491 U.S. 701 (1989)), that 42 U.S.C. §1981 by its terms prohibits private
discrimination as well as discrimination under color of state law. The Court considered whether §1981 created a private right of action to enforce that prohibition against state actors. The Court concluded that, “the express cause of action for damages created by §1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in §1981 by state governmental units.” (Id. at 720-721, 733).
28.“A plaintiff may sue a state official acting in his official capacity - notwithstanding the Eleventh Amendment - for prospective, injunctive relief from violations of federal law.” (Opinion and Order, p36).
29. The U.S. Supreme Court in Scheuer v. Rhodes (416 U.S. 232 (1974)) held: “The Eleventh Amendment does not in some circumstances bar an action for damages against a state official charged with depriving a person of a federal right under color of state law, and the District Court acted prematurely and hence erroneously in dismissing the complaints as it did without affording petitioners any opportunity by subsequent proof to establish their claims.”
30. Further in Scheuer v Rhodes, the Court noted "If the immunity is qualified, [416 U.S. 232, 243] not absolute, the scope of that immunity will necessarily be related to facts as yet not established either by affidavits, admissions, or a trial record. Final resolution of this question must take into account the functions and responsibilities of these particular defendants in their capacities as officers of the state government, as well as the purposes of 42 U.S.C. 1983".
31.“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818 [73 L.Ed.2d 396, 410]).
32. Plaintiffs assert violations of civil rights and other rights of which so-called “legal professionals” “would have known”.
33. Plaintiffs also assert evidence to demonstrate that such violations of guaranteed rights are planned, intentional, and organized for profit to the chosen few who are lawyers and officials benefiting at Plaintiffs’ expense.
34.Plaintiffs further assert that discovery in the related cases to Anderson would further verify the civil and criminal allegations made by Plaintiffs, that are already confirmed as plausible in Anderson.
INTER-STATE CIVIL RIGHTS CLAIMS
35. Pamela Carvel (and other Plaintiffs) asserted, and demonstrated with facts, violations of 42 U.S.C. §§1981, 1983, 1985, 1988; the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution (collectively “guaranteed rights”).
36. Several Plaintiffs asserted criminal conspiracies across state lines resulting in the deprivation and obstruction of civil rights.
37. Title 42 U.S.C. §1988 in relevant part confers on the district courts “protection of all person in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause” (emphasis added).
38. This Court was not asked to review State of New York court decisions. The acts of State employees were described to demonstrate such actions resulted in the conspiracy against rights.
39. Pamela Carvel’s complaint (and other Plaintiffs) did not solely assert damages from individuals as lawyers under 42 U.S.C. §1983, but also under §§1981,1985, and 1988.
40. Moreover, restrictions on injunctive relief pursuant to 42 U.S.C. §1983 apply only to “an act or omission taken in such officer’s judicial capacity”. This restriction does not apply to apparent bribery of a judge or other official to create unequal treatment between litigants, nor to lawyers acting individually to obstruct guaranteed rights for personal gain, nor to another State employee’s acts which are improper, illegal, or not within their jurisdiction. Title 42 U.S.C. §1983specifically provides that violators “shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress”.
41.Pamela Carvel (and other Plaintiffs) asserted that failure to stay proceeding upon the death of a party, and failure to formally substitute the representative of a deceased party stops jurisdiction of country Surrogate’s Court, and all decision and orders are null and void.
42. Additionally, 42 U.S.C. §1986 directly refers to “action for neglect to prevent”. In relevant part it states, “Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case”.
43. Title 42 U.S.C. §1985 (2) applies to obstructing justice; intimidating a party, or witness if “two or more persons in any State … conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State”.
44. Title 42 U.S.C. §1981 guarantees equal right under the law. It does not provide that lawyers are more equal than their clients; or that fiduciaries that pay the judge are more equal than other fiduciaries that don’t.
45. This Court failed to note that Plaintiffs already directed their complaints to the state court system, the Attorney General for the State of New York, and the appropriate United States Attorney, as suggested in the Opinion and Order. Criminal charges may be under investigation by law enforcement and may yet be made against the Defendant individuals, but this does not prohibit Plaintiffs’ recovery of civil damages for the conspiracy to deprive rights under color of law and other related offenses, characterized by the Opinion and Order as only being “state law claims”.
46. This Court has not been asked to review the decisions of the departmental disciplinary committees. This Court has jurisdiction to prevent conspiracies against guaranteed rights by individuals who are/were employees of these disciplinary committees, including but not limited to making certain lawyers more equal than other lawyers and clients.
47. All Plaintiffs were thrown into an “Alice-In-Wonderland” frame of mind until the insider whistle-blowing by Christine Anderson revealed that a select few State employees were managing the scenario of mandatory State and U.S. codes in a manner to thwart the real and truthful facts from surfacing about systemic deprivation of guaranteed rights under color of State laws, rules, and regulations.
FIRST AMENDMENT
48. Conspiracy against Plaintiffs to violate First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution (collectively “guaranteed rights”) were asserted in the complaints that were dismissed. Summary dismissal (without adverse motion in most cases) violates First Amendment right to redress of grievances, thereby preventing protection of all other rights.
49. The right of petition has expanded. It is no longer confined to demands for ''a redress of grievances,'' in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. (See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961)).
50. The right extends to the ''approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.'' (California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 -15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980) (boycott of States not ratifying ERA may not be subjected to antitrust suits for economic losses because of its political nature)).
“RIGHT TO AN INVESTIGATION” MISUNDERSTOOD
51. Plaintiffs’ did not assert a constitutional “right to an investigation”.
52. Plaintiffs do, however, have an intangible right to honest services when state employees allege to investigate, but in fact, aid and abet in the cover-up of unethical and possibly criminal acts by manipulation, concealment, or destruction of evidence.
53. Although a scheme "to deprive another of the intangible right of honest services” (18 U.S.C. §1346, a criminal charge) most often applies to pubic officials, it applies as well to schemes to violate a private sector fiduciary's duty to provide honest services to his clients (See United States v. Jain, 93 F.3d 436, 441 (8th Cir.1996), cert. denied, 520 U.S. 1273, 117 S.Ct. 2452, 138 L.Ed.2d 210 (1997)).
54. While private citizens cannot prosecute criminal statutes, criminal acts contribute to damages asserted by Plaintiffs’ civil complaints.
55.There is well-established law in our jurisprudence, which places an affirmative duty on all of us to expose any treasonous or criminal act, which comes to our attention (18 U.S.C. §§4, 2382). Failure to do so is defined as “misprision.”
56.It is the duty of every good citizen (presumably including officers of the court), knowing of a treason or felony having been committed, to inform a magistrate. Silently to observe the commission of a felony, without using any endeavors to apprehend the offender, is a misprision. Dismissal of Plaintiffs’ complaints thwarts the intent of U.S. laws as well as every citizens’ reliance thereon and obligations there under.
57.Misprision of treason applies to officials who have taken an oath to protect and defend the Constitution (18 U.S.C. §2382).
58.Misprision of felony (18 U.S.C. §4) applies to all citizens who have knowledge of the actual commission of a felony cognizable by a court of the United States. Acts appearing to include felonies in violation of rights guaranteed under the U.S. Constitution belong in U.S. District Court, not before the same state officials accused of such violations under color of state law (42 U.S.C. §1981 et seq.).
59. Anderson demonstrates that “government” DID INVESTIGATE and apparently state employees falsified the evidence to harm individuals, possibly Plaintiffs, for the unequal benefit of favored attorneys over Plaintiffs and the interest of all Citizens.
60. In Zahrey v. City of New York, (No. 98 Civ. 4546(LAP), 1999), on a motion to dismiss, the District Court dismissed the claims against defendant Coffey on the ground of qualified immunity. Without determining whether a prosecutor's fabrication of evidence violated a constitutional right, this Court ruled that Coffey was entitled to qualified immunity because "the law was not `clearly established' in 1996 that a prosecutor's fabrication of evidence violated a person's constitutional rights."
61.On appeal to the U.S. 2nd Circuit Court of Appeals for the Second Circuit, (Zahrey v. Coffey, No. 99-9119), this Court’s dismissal was reversed and remanded: “We hold that there is a constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigatory capacity, at least where the officer foresees that he himself will use the evidence with a resulting deprivation of liberty. … [W]e conclude that the allegations of the complaint suffice to indicate that a qualified immunity defense may not be sustained without further development of the facts.”
62. Pamela Carvel’s complaint was not served to all defendants, and no Motion to Dismiss was filed before the Opinion and Order to dismiss. This Court’s presumption of motions to dismiss (without the actuality) applies to many other Plaintiffs as well. Certainly, there was no opportunity to verify though discovery the falsification of evidence by State employees.
ROOKER-FELDMAN DOCTRINE IS INAPPLICABLE
63. There are no State proceedings dealing with the issues raised in Plaintiffs’ complaints, or with these Defendants; the relief sought (injunctive relief against the state and money damages against individuals) has not been sought in State courts.
64. This District Court has not been asked to change any State decisions.
65. Plaintiffs’ complaints do not concern actions properly “judicial in nature” since Plaintiffs assert that revelations in Anderson confirm accusations of improper acts by individuals beyond the legal limits of their official positions, thereby harming Plaintiffs by deprivation of substantive and material guaranteed rights under U.S. laws.
66. The Supreme Court case of Exxon Mobil Corn. v. Saudi Basic Industries Corp. (544 U.S. 280 (2005)) clearly shows that claim preclusion is a separate doctrine entirely. In Exxon the requisite elements that must be met for the Rooker-Feldman doctrine to apply are defined as:
a. First: The case must be brought in District Court by a party that has already lost in state court. This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). Pamela Carvel’s complaint (and other Plaintiffs) of official corruption, causing damages by a conspiracy of lawyers, in deprivation of rights, has never been brought in State court.
b. Second: The injury claimed must be as a result of the judgment itself. This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). There is no “judgment”. The complaint in District Court concerns on-going abuse of civil rights under color of state law, or state authority, by state employees and other lawyers causing damages to Plaintiffs.
c. Third: A final judgment on the state court proceeding must have already been rendered before the federal action is brought. This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). There has been no “judgment”, final or otherwise, no trial, and no hearing in State court on the subject matter contained in the Complaint.
d. Fourth: The federal case must invite review and rejection of the state law claim; if the claims are not identical, the Federal claim must be inextricably intertwined with the state law claim, so as to implicate common facts pertaining to the same transaction or occurrence. (District of Columbia Court of Anneals v. Feldman, 460 U.S. 462,483 n. 16 (1983)). This is not the fact in Pamela Carvel’s complaint (or other Plaintiffs). Although the District Court cites previous federal and state cases in which Pamela Carvel was a party, NOT ONE of those cases contains the Constitutional and other issues contained in the instant complaint by Pamela Carvel (and other Plaintiffs). Since official corruption causing deprivation of civil rights was not part of any State proceeding, since there was no previous injury from judgment since there was no final State court judgment, therefore Rooker-Feldman does not apply.
67. It is an abuse of discretion to dismiss a declaratory judgment action in favor of a state court proceeding that does not exist (Michigan Tech Fund v. Century Nat'l Bank of Broward, 680 F.2d 736, 742 (11th Cir. 1982) (reversing discretionary dismissal of declaratory judgment complaint where there was "no pending state proceeding in which the issues in this case will necessarily be resolved"); (Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235 (11th Cir. 2000)).
68. In ARW Exploration Corp. v. Aguirre (947 F.2d 450 (10th Cir. 1991)), it was held that a district court abused its discretion when it dismissed a declaratory judgment action after a related state court proceeding had been dismissed. In that case the state court had not addressed the issues raised in the federal declaratory judgment action and those claims could no longer be adjudicated in state court because the state court proceeding had been dismissed.
STANDING
69.Plaintiffs assert that Anderson revealed and verified suspicions of systemic corruption by State employees acting in violation of their oaths of office.
70.Plaintiffs assert that such abuses of official positions should be immediately stopped by injunctive relief appointing a Federal Monitor.
71.Plaintiffs assert that such abuses caused personal and financial harm by these individuals who acted improperly while State employees in conspiracy with other lawyers. Such lawyers profited individually from obstructing Plaintiffs’ guaranteed rights under U.S. laws and Constitution. Plaintiffs seek damages for conspiracy to deprive rights against such individual lawyers through the dismissed complaints in New York Southern District Court.
72. Three tests determine if a would-be plaintiff has standing: the litigant must show:
(1) that he has suffered personally some actual or threatened injury,
(2) that the injury must be fairly traceable to the alleged illegal conduct of the defendant, and
(3) that the injury must likely be redressed by a favorable decision. (Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982)).
73.Causation and redressability are required (Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41-43 (1976)).
74. The Supreme Court has referred to the “injury-in fact” standard as the “irreducible minimum” required by the Constitution.
FEDERAL RULES OF CIVIL PROCEDURE 8, 9 & 12
75. The dismissal Opinion and Order very clearly regurgitated the basic facts (adding some of its own) in each complaint, thereby demonstrating the intelligible nature of each Plaintiffs’ statements.
76. A pro se litigant, without training in what judges expect to read, is always between a rock and a hard place when framing a Complaint – write short and plain and one hasn’t said enough to state a claim; amplify enough to make the claim plausible and one is labeled “confused”. Plaintiffs’ Complaints presented substantive facts without “bald assertions”. Such facts, especially when presented by pro se litigants, must be taken as true (Opinion and Order, p.30).
77. The revelations of organized systemic corruption revealed in Anderson further substantiates the statements that might have been otherwise labeled implausible. Continued discovery would further substantiate the preliminary facts asserted.
78. Plaintiffs made statements of fact and attempted to provide enough details (pursuant to Rules 8, 9, and12) to demonstrate that in the light of Anderson the claims were not speculative and should not be summarily dismissed sua sponte without further discovery in a knee-jerk reaction to pro se litigants.
CONCLUSION
79. Based on the facts and decision cited above, Plaintiff Pamela Carvel respectfully requests this Court reconsider returning all related Plaintifs’ complaints to active status because the Opinion and Order dismissing all related cases to Anderson misperceived Plaintiffs’ assertions and overlooked controlling decisions by the Second Circuit, the U.S. Supreme Court, and others, that require U.S. District Courts preserve and enforce civil rights and other rights guaranteed by the U.S. Constitution and other U.S. laws when those rights are violated under color of state law. Government and the State have an overriding obligation to Citizens and Law, not to errant employees and other lawyers.
August 18, 2008
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Pamela Carvel, pro se by lack of funds
28 Old Brompton Road, Suite 158
London SW7 3SS, England
NY tel/fax 1 212 751 6746
