The civil rights case brought by a Pro Se poor person (adjudicated as In Forma Pauperis - poor) by the federal court - was dismissed "sua sponte" by judge Mae D'Agostino whose niece Amanda Kurilyuk is a partner with Anthony Cardona, son of the deceased head of the Appellate Division 3rd Department, also Anthony Cardona.
Anthony Cardona is also an Assistant District Attorney in the Albany County.
Stephen Allinger, Susan Kushner's son is also an Assistant District attorney in the Albany County, and got his position there after his mother became a judge - thus disqualifying the Albany County Dsitrict Attorney's office in all child abuse proceedings where the District Attorney is a necessary party by statute.
It is very possible that Mae D'Agostino rubbed elbows with Susan Kushner for a long time when both of them were attorneys, and should not have presided upon her case. Yet, nothing these days can appear as an "appearance of impropriety" to judges, and self-recusal of a judge as it happened in Alex Kozinski's case because, even though the judge thought he could be impartial, he also thought there will be an appearance of impropriety to preside, is as rare as close-to extinction species.
The poor civil rights plaintiff agaisnt Judge Kushner who hand-wrote his complaint and asked for assigned counsel (which was denied, because assigned counsel is not "allowed" in civil rights cases), was given a whopping 14 days' notice by the court to answer a report of the magistrate claiming that the case must be dismissed and citing the law.
Here is the docket report of the case:
The Pro Se Handbook was supposed to be sent to Mr. Davis by mail.
The Pro Se Handbook sent by this court is a stack of papers, probably, 4-inch thick which is intimidating to a person who is not trained in the law.
There is no proof that Mr. Davis even received the Pro Se Handbook.
On the same May 2, 2014, the court recognized that Mr. Davis has filed a motion for poor person relief and to appoint counsel.
Within 6 days, on May 8, 2014, the court does the following:
- grants Mr. Davis' motion to consider him IFP (poor person);
- DENIES him his motion to appoint counsel BECAUSE the court has issued a recommendation to dismiss the case on the court's own motion, and
- gives Mr. Davis a "notice" that, unless Mr. Davis files objections to that recommendation (without counsel), not only the case will be dismissed, but Mr. Davis' right to appeal will be precluded
Here is the Report and Recommendation:
It is clear that it is impossible for not only for a person not trained in law, as Mr. Davis was, but also for an experienced attorney who does not specialize in civil rights litigation, to respond to this "Report and Recommendation" by the deadline.
In fact, any attorney would have asked for an adjournment of the deadline. But, an attorney would know how to ask. Mr. Davis didn't know.
Mr. Davis simply did not respond to the Report and Recommendation - because he had no training to do so, and because the court, Magistrate Hummel, denied him assistance of counsel in order to be able to respond, and denied him even reasonable time to be able to hire such counsel.
Also, because NDNY court denies pro se parties a right to file electronically, the 19 days that were given to Mr. Davis to respond turned into a much shorter span of time - if Mr. Davis was even served by the "Report and Recommendation", for which there is no proof.
There is no indication that Mr. Davis received the Report and Recommendation that NDNY sends by mail - and I know for a fact based on experience on my husband when he sued pro se, that NDNY regularly claims it sent something when nothing comes.
Now, even if Mr. Davis did receive the Report and Recommendation, it would have been on Tuesday May 13, 2014 (New York law applicable to the situation, adds 5 days for regular mail). From May 13, 2014, Mr. Davis had 14 days minus another 5 days for mailing, so, he had a whopping 9 days to complete his education, have a crash course in civil rights litigation without counsel, research the cases cited in abundance in the Report and Recommendation, form his legal theory of defense and answer.
Of course, it was a joke that the court expected a pro se indigent party to do that within the given time and a mere formality for the court before the court dismissed the action, acting clearly as an advocate for Judge Kushner, before Judge Kushner was even served with the lawsuit.
Here is the final order of dismissal signed by Judge Mae D'Agostino:
Judge D'Agostino heavily relies in her dismissal on Mr. Davis' "failure" to respond to the Report and Recommendation.
Readers, please, consider if you would be able to respond to that kind of Report and Recommendation, without counsel, by the given deadline.
Consider also that Judge D'Agostino mentioned in the order that Mr. Davis' alleged failure to respond to the Report and Recommendation did not only lead to dismissal of the case, but somehow precluded appellate review for that pro se indigent party.
Talking about discrimination against the poor.
Consider also that the case was dismissed "with predudice" (without opportunity to bring it back to court), even though it was dismissed before it was served and dismissed before Mr. Davis, an adjudicated poor person, had an opportunity to find an attorney for himself, while the court denied him an appointed attorney BECAUSE the court needed Mr. Davis to default on his objections, lose his opportunity for appeal - and clean the court's docket.
So - there is an appearance from all the above that Judge Mae D'Agostino supported job security for her niece by supporting the son of a judge who worked alongside the powerful law partner of her niece in the Albany County District Attorney's office.
Yet, for Mae D'Agostino and her Magistrate Judge Hummel, apparently, there is no appearance of impropriety here - not even in how blatantly and arrogantly Mr. Davis was denied assistance of counsel and then punished that he could not file objections, within a very short period of time, to an extremely complicated report stuffed with legal theory - without assistance of counsel.
The next year after the dismissal of Mr. Davis' case, the same court, different judge, granted judicial immunity to yet another "IFP" (poor person) civil rights plaintiff, immunizing yet another judge, Kevin Dowd of the Chenango County Supreme Court, for antisemitic behavior AFTER the judge left the case - and had no jurisdiction over the case, thus acting as a lay individual without any immunity.
Even though cases were dismissed for judicial immunity, nothing prevented the Judicial Conduct Commission from investigating the cases and disciplining such judges for unfitness for office. Yet, the Commission did not find anything objectionable in Kevin Dowd's behavior and we might never know whether the Commission even considered Judge Kushner's behavior.
I know about the Commission's review of Dowd' case only because the complaint about Dowd was mine. Complaints against judges are usually made and kept secret by the Commission, so there is no way of knowing how many times, and on what grounds, complaints against judges were made, precluding the public from knowing about both judicial misconduct and about how well the Commission fights it.
When a Jewish judge is discriminating against Muslim parents, when an Anglo-Saxon judge discriminates against Jewish divorce litigants, and is doing it in a way specifically targeting their Jewishness, as Kevin Dowd did, both of these actions are racist, and both of them make judges unfit for the bench.
Yet, what appears is that courts are consistently endorsing racist behavior of judges through the judicially created doctrine of absolute judicial immunity that exists allegedly to allow independent judging without fear or favor.
So, judges are allowed to be malicious, corrupt and racist in order to allow them to be fearless and fair - for the alleged benefit of the people.
Only people bound to a lunatic asylum can concoct such a "logic", but that's the basis upon which thousands of cases have been tossed by law-educated judges in this country.
Petition your legal representative to end judicial immunity now.
Petition your Congressman to impeach Judges D'Agostino and Hummel for outright discrimination against poor civil rights plaintiffs under circumstances suggesting conflict of interest.
Support state constitutional amendments to eliminate judicial immunity on constitutional level.
If you hope that the judiciary will bring their own to any kind of accountability - you are living in a dream world.
Remember Mr. Davis' case.
Mr. Davis was discriminated against because he was poor and a Muslim by one judge - Judge Kushner.
Then, he was discriminated by two other judges, now in federal court, where he sought redress of what Judge Kushner unlawfully did to him, according to his statement.
The judiciary will always look out for their own.
It is up to us, the People of the State of New York and of the United States, to bring judges illegally discriminating against people to answer and suffer the consequences of their misconduct.
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