How federal courts discriminate against civil rights appellants

I do not raise these issues out of a hat.  Life suggests them.

This week my husband received a notification from the clerk of the U.S. Court of Appeals for the 2nd Circuit on his pro se appeal in the case Neroni v. Coccoma which I extensively described on my blog, for example, here, here, here, here, here, here and here.

As you see from my previous blogs, Mr. Neroni's case raise very, let's say, "sensitive" issues for the government.

Most likely, Mr. Neroni's appeal will have at least one issue that will have to be certified to the New York State Court of Appeals, because the U.S. District Court judge Gary L. Sharpe, in his zeal to help out a wife of a judge and a judge, and to absolve from a finding of misconduct the New York State Attorney General, his own son's employer, has gone too far and has actually amended through interpretation New York Public Officers Law Section 17 providing for authority of the New York State Attorney General to provide legal representation at taxpayers' expense, something that Judge Sharpe was not authorized by existing law to do.

As I wrote before, Judge Sharpe allowed the New York State Attorney General to represent two individuals, the wife-of-a-judge Ellen Coccoma, and the retired judge Eugene Peckham, claiming that they were NOT state actors, as required for jurisdiction under the federal law, because they were sued for their private conduct.

Apart from the legal issue that being a private attorney does not always absolve such a private attorney from liability under the 42 U.S.C. 1983, the Civil Rights Act, when the New York State Attorney General's office advanced an argument on behalf of two clients that they were NOT state actors, the New York State Attorney General at the same time has proven that it was committing attorney misconduct by extending taxpayer-backed free representation to those private attorneys.

Judge Sharpe protected both the NYS AG, Ellen Coccoma and Eugene Peckham by extending the Public Officers Law 17 to cover private attorneys under the circumstances where they are sued (allegedly) also as state actors in the same action.

By his decision, Judge Sharpe amended Public Officers Law Section 17 through his interpretation, which is prohibited under the doctrine of separation of powers, by Article III of the U.S. Constitution. 

By his decision, Judge Shapre disenfranchised (stripped of voting rights) New York State voters for the Legislators, because in New York, amending statutes enacted by the Legislature, can be done only by the Legislature, and not by state or federal judges.

Since this is a sensitive issue, it should be addressed with care, and a pro se appellant should be given ample opportunity to research the issue and present his argument on appeal, on the issue of grave public concern - creation of an "assigned counsel for the rich" precedent at the time when majority of litigants may not get access to court because they cannot afford legal representation.

So what did the U.S. Court of Appeals for the 2nd Circuit do when an appeal of such a decision was filed?

It restricted Mr. Neroni's time to file the appellant's brief to 35 days from the time of notification that his brief is put on the so-called "expedited calendar".

Here is the rule of the 2nd Circuit for the "expedited calendar".

The claimed purpose of the "expedited calendar" is to "facilitate prompt determination of appeals from district court orders" on certain grounds:

1. dismissal for lack of jurisdiction;
2. dismissal, where there is jurisdiction, but the plaintiff (including a civil rights plaintiff), according to the district court, failed to state a claim entitling him or her to relief in court;
3. the complaint was frivolous;
4. dismissal was on grounds specified in 28 U.S.C. § 1915(e)(2), a statute dedicated with dealing with "in forma pauperis" (poor, indigent) appellants, which includes the following grounds for dismissal:
1. the allegation of poverty is untrue;
2. the action or appeal is frivolous or malicious;
3. the action or appeal fails to state a claim;
4. the action or appeal "seeks monetary relief against a defendant who is immune from such relief" (see photocopy of the statute below)

First of all, the declared goal for the "expedited calendar", of "facilitating prompt determination of appeals", of orders made on certain grounds only, in my legal opinion, makes no sense . 

The goal of an appeal, generally, is for the appellate court to determine whether the district court has made an error of any kind, including the error of dismissing the action on any grounds.

By the "expedited calendar rule" appellants, including

• civil rights appellants, including 
• pro se appellants, including
• poor/indigent appellants, including
• civil rights pro se indigent appellants,

are given LESS TIME  to do research and present arguments to the appellate court than appellants who appeal from later stages of litigation in district courts, merely on the basis that district courts made a potential error of early dismissal of their lawsuits.

Thus, the type of error of the district court determine, for the U.S. Court of Appeals for the 2nd Circuit, the rights of civil rights plaintiffs/appellants on appeal.

First of all, this is a very convenient rule for the district courts.

As long as a district court dismisses a civil rights lawsuit early on, erroneously or not, the victim of the district court's error, by virtue of that error, is given less rights on appeal than an appellant who appeals, let's say, from the summary judgment or a jury verdict of the same district court.

Such a rule practically encourages district court into sloppy review of motions to dismiss, because by restricting rights of appellants based on the type of error of the district court, the appellate court practically signals to the district court its deference and support of such of whatever decisions made by district courts on the "expedited" grounds, no matter how erroneous.

And that is, ladies and gentlemen, an unconstitutional pre-judgment of appeals and denial of access to courts by a federal appellate court, predominantly to civil rights litigants.

The ministerial duty to take out the trash?

In addition to the above arguments, the question remains as to how shortening the briefing schedule, especially for unrepresented and poor pro se parties, fulfills the declared purpose of the "expedited calendar rule" of the 2nd Circuit- how does it "facilitate prompt resolution of appeals"?

Further explanation of the technology of discrimination is contained in the last sentence of the "expedited calendar rule" where the 2nd Circuit bluntly states that any requests to the court to extend the shortened briefing schedule are

1. "disfavored by the court", and
2. governed by the Local Rule 27.1.

Translated into plain English, the 2nd Circuit does not want to  hear the puny complaints of pro se poor and, possibly, illiterate, appellants that they,  for example, need time to read and research for purposes of such briefing, and that such research may take them extra time, as compared to represented counsel whose attorneys have instant access to research databases.

Here is the Local Rule 27.1 in its full glory.

The rule clearly shows that the court pushed its "disfavor" of requests to extend time to perfect appeals (file appellate briefs) to such a degree that it does not even want to do its duty of review of people's motions, it delegated review of such motions made TO THE COURT and asking for judicial review of those motions, to a non-judicial employee, the clerk of the court, see Local Rule 27.1 subsection (c ), also included as a photocopy for your convenience above.

Thus, instead of having judicial review of their applications, appellants who are already victimized by certain types of errors by the district court, are further victimized by the appellate court through restrictions of their rights based on the type of error made by the district court and by the denial of judicial review of their motions to the court to give them equal rights with other appellants on constitutional grounds, because equal protection, access to courts and anything that restricts it are constitutional grounds.

The 2nd Circuit judges are each sworn into office under Article III of the U.S. Constitution.

Federal judges are chosen and recommended for appointment by the President of the United States and confirmed by the U.S. Congress after confirmation hearings.

These judges have ABSOLUTELY NO RIGHT to delegate judicial review and resolution of legal issues on motions from parties to non-judicial personnel.

But, apparently, in order to "facilitate prompt determination" of, predominantly, the "facilitation" turns into rubber-stamping the dismissals of the civil rights cases by the district courts.

Civil rights cases are most often dismissed on jurisdictional,  "failure to state a claim" and the so-called "immunity" grounds invented by the courts, and such dismissals can be done

(1) in honest error; 

(2) to clear the district court's calendars of those pesky civil rights plaintiffs (an unconstituitional yet frequent ground for dismissal, even if the "calendar congestion" is not openly stated in the order of dismissal); and

(3) to protect the state governments with which district court judges sometimes are "inextricably intertwined", as demonstrated earlier on Judge Sharpe's example, also an unconstitutional ground for dismissal.

And you know what appears from the reading of the "expedited calendar rule", as well as the statutes and the local rule referenced in it, together with the warning that the "court" "disfavors" motions to "extend" time to file briefs

(including, apparently, motions to give civil rights appellants equal rights with, let's say, diversity appellants appealing from a jury verdict, where a possibility of early dismissal of a diversity case is astronomically lower than of a civil rights lawsuit),

and delegates to its clerks to dismiss such "disfavored" motions without judicial review.

That civil rights litigants, including pro se civil rights litigants, poor civil rights litigants, illiterate civil rights litigants - are considered by the 2nd Circuit court as TRASH.

And that the 2nd Circuit court considers it a ministerial duty of its clerks to - TAKE OUT THAT TRASH and deny hope of equal treatment to pro se civil rights litigants.

And, by the way, by the same "Local Rule 27.1" poor appellants (including pro se indigent and possibly illiterate appellants) are given less time to prepare their appeals BECAUSE they filed an appeal where they asked for money damages from defendants who are "immune".

Immunity is a judicially created doctrine not supported by the U.S. Constitution of the Civil Rights Act statute.

Some immunities, even as created by the federal courts in excess of authority given to them by Article III of the U.S. Cosntituion, are still deemed "affirmative defenses" that are waived if not raised in the answer.

Civil rights lawsuits filed by of "in forma pauperis" (poor) plaintiffs are often dismissed BEFORE THEY ARE SERVED, by the district courts sua sponte.  In fact, I have seen such dismissals made before the court served the IFP (in forma pauperis) complaints (which is the duty of the court clerk to do) and while the same court has just sent to the poor and illiterate or unsophisticated pro se party "a pro se package", a brick-thick pile of papers about the pro se poor litigant's "rights", including information as to where they can find a counsel.

It is a ridicule and an insult against the poor litigants, especially the poor pro se litigants - to dangle something in front of them with one hand while immediately yanking it with another.

I already wrote how courts discriminate against pro se litigants.

I already wrote how the federal statute mentioned in the "expedited appellate calendar" rule, 28 USC 1915, is used by federal courts to block access specifically of poor pro se civil rights litigants to courts, both at the trial level and on appeal.

The "expedited calendar rule" for such dismissals aggravates this discrimination.

By dismissing a complaint on the basis of immunity which is an affirmative defense, the district court acts as an ADVOCATE FOR THE DEFENDANT GOVERNMENT, because for purposes of such a dismissal the court must necessarily raise the affirmative defense and grant it - to itself, as an advocate for the defendants who did not yet appear in the action.

A court cannot act as an advocate for a party, it is judicial misconduct.

In federal courts this judicial misconduct is elevated to law.

And it means that the appellate court, 2nd Circuit, further victimizes civil rights litigants who:

1. filed the civil rights lawsuit because their constitutional rights were violated in the first place;
2. were further victimized by the district court, and that's why they seek an appeal;
3. and are further victimized by the 2nd Circuit - before their appeal is even heard.

So, civil rights litigants and appellants can discern from the treatment by federal courts that, instead of the declared

NOBODY IS BELOW OR ABOVE THE LAW

they are

TRASH TO BE TAKEN OUT BY NON-JUDICIAL EMPLOYEES

and that is before they even filed their appeals.

That's quite an encouragement for civil rights litigation.

And the U.S. Congress enacted 42 U.S.C. 1988 specifically to encourage civil rights litigation, so upholding the letter and spirit of the federal law is and was in every oath of every federal judge, including each and every judge of the 2nd Circuit.

Yet, instead of honoring their oath of office, they are

TREATING CIVIL RIGHTS LITIGANTS LIKE TRASH.

And it is for you, ladies and gentlemen, to allow or not allow this travesty of justice to proceed.

You and only you, the People, have a right to change this "status quo". 

Demand your representative in the U.S. Legislature to legislatively address these constitutional violations by federal courts from your legal representatives in the U.S. Legislature.

Until and unless you do that, federal courts will continue "facilitating" review of appeals by restricting appellant's rights with a view to dismiss appeals raising sensitive issues against the government.

Until and unless you do that, federal courts will continue to regard civil rights litigants daring to sue the government for violating your constitutional rights

AS TRASH.