What is attorney misconduct in Indiana is business as usual in New York

An Indiana attorney had to resign from the practice of law recently for adding an additional fee requirement to a criminal plea deal.  The attorney added $750.00 to his initial $1000.00 fee agreement.


Please, remember these numbers.


In New York, Delaware County, the District Attorney Richard Northrup and a criminal defense attorney, at that time the Vice-Chair of the New York Commission for Judicial Conduct, Stephen R. Coffey, have reached a plea deal under which the legally blind defendant was supposed to indemnify the District Attorney and all county officials, state police and federal actors of all civil claims pertaining to their potential liability for the seizure of his property.  It is interesting to mention that Mr. Coffey's co-member on the Judicial Conduct Commission was Karen Peters, the current Chief Justice of Appellate Division 3rd Judicial Department who, together with Stephen R. Coffey, dismissed my complaints against Judge Becker and against Karen Peters' court - I guess, no such thing as a recusal for conflict of interest exists in that Commission, and Mr. Coffey's and Justice Peters' own conscience did not mandate such a recusal.


And attorney Stephen R. Coffey had his legally blind client tell the court twice, under oath, at the plea allocution, that he was driving the truck Not only he couldn't do that because he was legally blind, but he didn't actually do that because another person was stopped and convicted for speeding on that same occasion, which was in the record.  Judge Becker accepted that allocution, having in front of him the record where the defendant's girlfriend was convicted for driving that same truck on that same occasion.


Attorney Coffey who worked the total of about 3 months on the case, did no discovery, no motions and made an appearance to strike this infamous plea deal, was in a hurry to collect his fee from the bail money, $18,500.00 if he brings litigation to a conclusion.  Which is what he was trying to do, fast.















Mr. Carbone was threatened that if he does not abide by all terms of the agreement, including, obviously, the indemnity term, he will be resentenced to the maximum for an A-II drug felony.





It is clear from the signature of Mr. Carbone on the plea agreement that he does not see what he signs.  There is no indication in the record that it was read to Mr. Carbone.  There is indication in the record that, on the contrary, nobody read the plea agreement to him before he signed it. 







It is also clear that, since Judge Becker, according to County Law 400, is a "county officer", he is "so-ordering" the indemnification for himself, too, and judicial immunity does not extend to extrajudicial seizures of property.


The fact that Mr. Carbone was legally blind and signed across the signature line, which means he did not see what he was signing, did not seem to bother the presiding Judge Carl F. Becker.




Not that it bothered the Appellate Division which affirmed the appeal without mentioning these interesting facts.


The judge, Delaware County Judge Carl F. Becker "so-ordered" the "indemnification" plea deal.


The Appellate Division 3rd Department affirmed without reviewing or resolving these issues.


It was obviously inappropriate for a prosecutor to agree to trade criminal plea bargains for his own personal indemnity from civil liability and liability of county, state and federal officials who participated in investigation and seizure of a defendant's property, especially when the defendant is legally blind and especially when nobody, including the judge, has read to him that particular condition.


It was apparent that the criminal defense attorney who was at that time toiling on the case for about three months, was too eager to collect his fee at the conclusion of litigation.  When that attorney was replaced before sentencing, he started to send out letters threatening criminal prosecution if anybody would touch "his" bail money. 


A 5-year litigation ensued over the bail money, with three appeals so far.


In 2010 the appellate court ordered the Delaware County Treasurer to pay the bail money in the amount of $18,500.00 to the defendant.


Delaware County Treasurer did not appeal to the court of Appeals, but she and her attorney Richard Spinney refused to abide by the court order.   Richard Spinney was never disciplined for that refusal.


A contempt of court motion was filed against it.


For some mysterious and undisclosed reasons the presiding judge on that case was "reassigned", and Judge Becker assigned himself to help out his former client of 27 years the Delaware County and his friends Richard Spinney and Beverly Shields who worked there.


During the motion hearing it was revealed by the then Delaware County Attorney Richard Spinney that he has talked on the phone or came to see Judge Becker on the issue of bail money.  I have the transcript of this confession.  The Appellate Division has the transcript of this confession.
Here is the front page of the transcript and the portion where attorney Spinney confesses to the fact that he called Judge Becker or came over to discuss the issue of bail with him (and who knows what else and in what way the old buddies discussed that issue).










The Appellate Division acted as if the transcript does not exist.


Even before Mr. Spinney's confession, I asked the judge to step down because of his above described actions in federal court, his obvious bias against the Defendant demonstrated in Judge Becker's claim that the Defendant was not as blind as he presented it to be because he could navigate the courtroom, and because Judge Becker represented Delaware County for 27 years before coming to the bench and was friends with the County Attorney.


Judge Becker did not recuse from the case after I asked him to do that.


Judge Becker did not recuse from the case after the County Attorney disclosed the ex parte communication on the record.


Judge Becker instead sanctioned me for raising the issues of his and other participants' misconduct, as described above, and for "threatening the court".


"Threatening the court" sounds like an act of terrorism, like I threatened the court to punch the court in the nose.  Did I?  Of course, not. 


All I did was forewarn Judge Becker that I consider him a witness in the case and intend to call him as a witness to testify at the trial.  That was how I "threatened the court". 


Was judge Becker a witness?  Of course, he was.  He talked to the Petitioner's attorney ex parte on the material issue of litigation before he released bail in such an "unusual" decision that the Treasurer mentioned that in the affidavit in the civil court that litigated who the bail money belonged to.  Event though the law clearly said that bail money must return to the person whose name was on the bail receipt, Judge Becker refused to do his duty and instead asked the Treasurer to "determine" who the bail goes to.  The appellate court later reversed that shenanigan on the law.


The Treasurer, instead of determining who the bail money belongs to, instead filed an interpleader action.


Delaware County was thrown into 5 years of litigation which still continues, because since the fall of 2010 when the summary judgment awarding bail money to Mr. Coffey's law firm was reversed and remanded, Judge Becker and the subsequently assigned judge did not strike a finger to move the case on the calendar.


Mr. Coffey threatened to prosecute anybody who touches defendant's bail money that defendant was entitled to but never received it until today because Mr. Carbone did not release the money despite a court order telling him to return the bail money back to Delaware County Treasurer since October 2012.  Mr. Carbone started threatening my husband and the criminal defendant with a prosecution for grand larceny, no less, if they attempt to touch the money.















Was he disciplined for committing the "no-no" of any attorney, specifically, for threatening criminal prosecution in a civil fee dispute situation, while Mr. Coffey's entitlement to the bail money is not resolved in 2014 while he threatened criminal prosecution if anybody attempts to touch the bail money in 2009?  Of course, he wasn't.
Was Mr. Northrup the prosecutor disciplined?  Of course, he wasn't.


Was Judge Becker disciplined?  Of course, he wasn't.


Was Attorney Spinney disciplined for his ex parte communication with Judge Becker? Of course, he wasn't, instead the Appellate Division pretended that the transcript where the confession about the ex parte communication was made does not exist and affirmed the sanctions against me.


After the sanctions were affirmed, Judge Becker sent to my home an election campaign flyer where Treasurer Shields de facto admitted to being Judge Becker close friend.


Was Judge Becker disciplined after that?  Of course, he wasn't.


How can one mar reputation of such honorable people?  Even if they marred it themselves?


It is better to kill the messenger.  


So, Judge Becker sanctioned me for reporting this mess and raising it as an appearance of impropriety in my request for Judge Becker to step down from the case, the Appellate Division affirmed while ignoring the transcript in front of the court which clearly showed that Judge Becker, through his ex parte communication with petitioner's attorney and his friend before the litigation even started, on the material issue of litigation, did make Judge Becker a witness in the proceeding.


Then, Judge Becker turned me into the grievance committee and is trying to get me disbarred based on his sanction.  To add insult to injury, this was one of three sanctions imposed upon me by Judge Becker within 45 days from the date when I sued Judge Becker in state court for in and out-of-court misconduct.


Is there a rule of law in the State of New York?


Do you honestly believe that Mr. Northrup, Mr. Spinney, Mr. Coffey and Judge Becker are NOT above the law and I am not below the law in the eyes of New York State courts?


Do you honestly believe justice is possible if you are right and some high-and-mighty person is wrong and you are stating that in court to his face?


By the way, the first attorney who raised the issue of corruption of Judge Becker on the criminal appeal of the legally blind defendant, was first threatened by the prosecution that he is "burning the bridges" by raising the issue of Judge Becker's corruption and then, "coincidentally", disbarred before his appeal was heard...  He was at that time and is now, also "coincidentally", my husband.


And finally, do you honestly believe that SUCH attorney regulation is protecting you, the reader, as a member of the public? 


You be the judge.

A federal lawsuit has been filed to verify membership of judges and attorneys in the American Inns of Court

I just filed a federal lawsuit in the U.S. District Court for the Northern District of New York where, among other things, I ask the federal court to compel judges who presided, are presiding and are likely to preside over my cases in the nearest future, to disclose their potential membership in a secret-membership organization, the American Inns of Court, which is funded by attorney-members (membership for attorneys is also secret) and provides for monthly closed-door meetings with receptions, national and international travel and scholarships.


In March of this year I already wrote about the American Inns of Court and the problems that a secret membership of judges may present as to validity of their decisions.


Membership of one judge out of several judges included into the federal lawsuit as defendants is confirmed because he is listed as a president of an American Inn of Court.


The case name and number is now:  Neroni v. Peebles, 3:14-cv-00584-GTS-ATB.

Judge threatens attorney - revisited

Recently I described an episode as to how a judge of Ulster County Supreme Court Christopher Cahill called an opposing counsel on a case where I represented a party, into his chambers and held there an ex parte conference with her, while his employee blocked me from entering the chambers where the ex parte communication was taking place for a prolonged period of time, and how Judge Cahill threatened me with a complaint to the Professional Conduct Committee when I confronted him after that ex parte communication.


I was recently notified by the New York State Court Administration in response to my FOIL request that the security file from that date was "recycled", in other words, destroyed.  That was despite my timely requests to the NYS OCA through FOIL requests and despite my complaint to the Judicial Conduct Commission specifically pointing out that such a security tape exists and will show evidence of the ex parte communication.


Previously, NYS OCA claimed to me in answer to a similar FOIL request pertaining to another courthouse, that the retention time for such files is 30 days.  I made my FOIL request in much less than that time, asked the Judicial Conduct Commission to obtain that file, too, and the evidence was still destroyed.   Isn't it obstruction of the fair administration of justice? Shouldn't an investigation be in order as to who exactly was instrumental in having the tape destroyed?  Isn't an inquiry in order whether Judge Cahill as one of the court administrators of that particular court building was involved in destruction of evidence implicating him in judicial misconduct?


This is not the first time destruction of such evidence is happening under different pretenses, and it appears to be the policy of the NYS OCA to destroy evidence of judicial misconduct caught on video.


NYS OCA must realize that destroying evidence of judicial misconduct does not enhance public trust in the integrity of the judiciary.

Open, Simsim! Or - do attorney disciplinary archives exist?

I would say "no".


For years I tried to get access to my own allegedly existing file in the Professional Conduct Committee, New York State Supreme Court, Appellate Division, 3rd Judicial Department (hereinafter PCC), and to the file of my husband in that same organization.


By Judiciary Law 90(10), my husband's file must be available to the public anyway, because my husband's license was taken in July of 2011.


Yet, nearly 3 years down the road my husband or I still cannot get access to his own file.


One can get access to his or her own file in the FBI, but not in the Professional Conduct Committee.


There is no discovery in attorney disciplinary procedure, PCC claims, and they are not under Freedom of information law (FOIL) because they are allegedly part of the judiciary (which raises interesting questions as to how can the same judiciary be the prosecutor and the adjudicator - on top of being the legislator of the rules), and as to my requests under Judiciary Law 255 or due process of law, PCC just bluntly denies access, period.


So I had to sue PCC on behalf of my husband for access to his own file, long after disbarment, while the file is presumed now to be public record.


And the lawsuit proceeds in federal court.


And they still do not give access to my husband's own file.


And at this time they still do not give me access to my allegedly existing file, while claiming they are relying on contents in that file which are unavailable to me.


Is it a violation of my due process of law?  Of course, it is.  But who cares?  They know that I have no right of appeal (New York does not give it to attorneys), they know that the NYS Court of Appeals will toss any constitutional claims by stating that my constitutional rights are not "substantially" violated, in one arrogant phrase without explanations, as NYS Court of Appeals always does, they know that there are only 9 elderly people on the U.S. Supreme Court to deal with petitions for a writ of certiorari from 50 states and that my chances of getting in front of the U.S. Supreme court are worse than for a camel to get through the needle's eye.


But - the mystery of the archive of PCC, or of its existence, remains, and, as a naturally curious person, I want to see it.


It is very difficult to give somebody something which does not exist.


New York State Governor Cuomo knows it and is using it or is about to use this wise approach of timely destroying public records to prevent inadvertent nosy citizens from learning what is not safe for their little minds to know, or to keep public records in his employees' private e-mail accounts.


New York State Office of Court Administration also is using the "do not create, stall access or destroy the evidence" approach for quite a while, and that is on my own knowledge.


But - if PCC uses the "Cuomo approach", then maybe, just maybe, my file and my husband's file still exist?  Maybe it is tucked away in the closet of a PCC employee's home? Or in their garage?  Attic? Barn? Shed?  Dog house? Chicken coup?


Can anybody who ever had access to the mysterious Ali Baba's Cave tell me if the treasure (PCC's archive) even exists?


Or do they feed all their documents, if they are even created, into a shredder or a dustbin and then use the fact that the court (which they are part of) always turns a blind eye on any of their shenanigans, no matter how bad, and believes their statements as to the alleged contents of their allegedly existing archive without any evidence of that existence?


Open, Simsim!


Oh, Treasure, do you still exist?

Three times is a pattern, or, if you need evidence of judicial misconduct, you won't get it, but if you claim judicial misconduct, you will be punished for claiming it based on insufficient evidence

The first time when I was denied access to security tapes in a courthouse was in August of 2010.  I was trying to verify which of the three judges who were at that time (upon my personal knowledge) in the courthouse gave an order to the security officer to detain me, an attorney with a security pass, at the time I was LEAVING the courthouse and to ask me to walk through a metal detector, as if I was a very dangerous person, in front of the public and in front of my colleagues.


The New York State Office of Court Administration (NYS OCA) ducked the issue by claiming that they cannot really give me a copy, copies cannot be made, the video-recording equipment does not allow to make copies, that I need to come before or after the court hours (which is illegal under the Freedom of Information Law) and look through the tapes because otherwise I will interfere with the work of the courthouse.  As a result, I was never able to get those tapes.  The three judges who were present in the courthouse at that time were Carl F. Becker, Rita Connerton, Eugene Peckham.  I would exclude Judge Peckham immediately from the candidates who could have given an order because I was in front of that judge right before I was leaving the courthouse, and there was nothing in my behavior or in the judge's reactions that would suggest that the judge was upset or could have given such an order. 


I did not have any cases in front of Judges Becker or Connerton that day, entered the courthouse using my attorney secure pass, was directed by the court officer to the waiting room under the security cameras and stayed there the entire time until I was called into Judge Peckham's courtroom, and after that I headed toward the exit/entrance of the building and was stopped there and asked to go through a metal detector "before I go upstairs".


In fact, I was supposed to go "upstairs" because my husband and I were attorneys of record in a felony criminal trial that was handled on the 2nd floor at that same time before Judge Carl F. Becker.  I was not heading upstairs at that time, but even if I would, there was no point at all to put an attorney of record in a criminal case through a metal detector.   My background was checked through and through by the immigration authorities (I became an American citizen in 2009), I never committed any crimes and I was a perpetrator of violence, so there was no reason whatsoever to do that to me, other than to embarrass and humiliate me in front of the public and other attorneys.


Yet, I will never know who has given such an order because the security personnel was mum, it was unfair to sue security officers while the "big birds" were getting away with their misconduct, so I did not do it.


The second time I was denied access to the security tapes in a courthouse was in November of 2011 when I was trying to confirm the ex parte communication between a presiding judge, James C. Tormey, the Chief Administrative Judge of the 5th Judicial District who has interesting litigation history against him raising questions as to why he is still on the bench, a judge who was a defendant in an action I brought as a plaintiff and attorney for two co-plaintiffs, Carl F. Becker (you can word-search my blog to find out interesting information about this judge) and an Assistant New York State Attorney General representing Carl F. Becker in that litigation.


The New York State OCA ducked the issue by claiming that for that particular day the video-recorder, unfortunately, broke, but refused to provide to me copies of documents proving that payments were made for repairs of that allegedly broken equipment.


The third time I was denied access to the security tapes in a courthouse was yesterday.  I was bluntly told by NYS OCA that the security footage I was requesting is "unavailable", no explanations given.


The interesting part about it was that I sought for security tapes documenting yet another ex parte communication, but this time of another judge, Judge Christopher Cahill of the Ulster County Supreme Court, I wrote about it in March of this year.   Part of the footage was supposed to show the waiting room between the chambers of Judge Cahill and the chambers of the Chief Judge of the Appellate Division Third Judicial Department Karen Peters.


My initial FOIL request made on the day of the occurrence of the ex parte communication to which I was a witness (how attorney Del Seligman was called into the judge's chambers, how she walked into the chambers and closed the door behind herself before I could reach it, how I was not allowed by the judge's clerk or secretary to enter and was told that the judge wanted to see only Del Seligman, and how long Del Seligman was in there with the judge while I was not allowed to enter) asked for the footage of March 25, 2014, I was in a hurry and copied the letterhead template with the previous day's date.


The footage was delivered to me immediately, but, naturally, showed nothing.


I immediately asked for the footage on the correct date, and then silence set in for a month.  In a month's time I was told curtly that the footage will not be given to me because it is "unavailable".

Yet, the happy delivery to me of the footage from March 25, 2014 shows that copies of security tapes may be made, contrary to what I was told in 2010 on the same issue by NYS OCA.  Problems with "availability" of these tapes arise only when you ask for tapes which, most likely, document misconduct of a judge.


It is very interesting to mention that the security tapes became mysteriously "unavailable" at the time when I turned Judge Cahill into the Judicial Conduct Commission and asked them to review the security tapes, and when Judge Cahill threatened me to turn me into the Professional Conduct Commission because I was "out of line".  Security tapes would have been key evidence to show that I was right and the judge was wrong.  That key evidence is now "unavailable".


The interesting part is that recently, law clerk for another judge, Mark Oursler, refused to move his finger and push the button on a digital recorder when attorney Andrew Van Buren was verbally harassing and bullying me during a court conference. 


Then, the Professional Conduct Commission relied upon a hearsay statement allegedly from the same Mark Oursler stating that nothing like that ever occurred and that I am making false statements about good and innocent attorney Andrew Van Buren (who is, coincidentally, upon information and belief, the only attorney who openly supported Judge Becker in his election campaign, while I was, upon information and belief, the only attorney who openly opposed Judge Becker in his election campaign).


If I was making those false statements, why would good old Mark Oursler refuse to push the button and create evidence that would rebut my false statements?


It appears as if that was done for the same reason I was denied security tapes by NYS OCA in August 2010, November 2011 and May 2014, so that no obvious evidence of misconduct of a judge, or a judge's darling attorney could be presented to authorities.


I must add that I was sanctioned, by Judge Becker, for making motions to recuse the same Judge Becker, and the sanctions were claiming that I made false claims against the judge, and that my claims were based on allegedly insufficient evidence or making false claims.  That same judge started a sua sponte frivolity proceedings against me for making FOIL requests against him that, obviously, were reported to him back down the grapevine. 


The sanctions were arrogantly imposed upon me by Judge Becker after the NYS OCA stalled my FOIL inquiry into his financial semi-annual reports and refused to provide to me video evidence of which of the three judges present in the courthouse on that August day of 2010, Carl F. Becker, Rita Connerton, or Eugene Peckham (the latter highly unlikely), has given to the court security officers an order to unlawfully arrest me in the courthouse in front of members of the public and my colleagues, other attorneys, and to put me through a metal detector on my way out of the courthouse, thus conducting a body search and drawing attention to me from the people who witnessed that by the highly irregular procedure, especially as applied to an attorney with a secure pass.  


In fact, the regular procedure for attorneys is that, if an attorney comes to the courthouse with a "secure pass" issued by the NYS OCA after appropriate background check, as it was issued to me, the attorney bypasses the metal detectors.  That's what I did that morning in August of 2010.  There was no reason whatsoever to ask me to go through the metal detector, especially when I was leaving the courthouse, other than to harass, denigrate and intimidate me, which is quite Judge Becker's style of conduct toward me that I observed and experienced in the courtroom.




The order was, most likely, given by Judge Becker who is the administrator of that particular courthouse, who was present at the time of the order (which I heard reported over the radio) and in front of whom my husband and I were trying a felony case.  I also heard from other people that Carl F. Becker was upset about my husband and me "double-teaming", or co-chairing, criminal trials, which allowed one of us to cross-examine witnesses and the other to jot down questions or review evidence provided by the prosecution during the trial.




So, a disciplinary case was concocted against my husband, he was stripped of his license and we are no longer "double-teaming".  Now the task before a certain group of individuals within NYS OCA and certain other public officials against whom I filed FOIL requests and blew whistles on appearances of impropriety, is to strip me of my hard-earned law license, which was even more hard-earned that English is not my native language.


In order to do that, I am denied access to the most convincing evidence, video and audio evidence of people's misconduct, and those same people who deny me access to evidence then claim that what I am saying is somehow false.  If it is false, why not allow me to preserve that false statement or evidence of my own inappropriate behavior?  Wouldn't it sound as a logical to do?  Or doesn't such a pattern of behavior show that it was not my misconduct that would have been preserved by audio- and/or videotaping, but somebody else's?




This is the law of connections in New York in its full glory.   Your case is going to be decided in accordance with your social status and your connections.  Do not for a split second confuse it with the rule of law.

It is not honorable for the U.S. Congress and federal courts to blatantly discriminate against indigent pro se litigants

I've posted this story in two of my blogs, one dedicated specifically to discrimination by American courts against pro se litigants and this one, focusing on judicial accountability and independence of the legal profession.  I believe it is important for the readers of both of these blogs to see this story.


I've got a phone call today from a reader of my blog who has been litigating pro se in federal and state courts, so far unsuccessfully.


The reader, a well respected retired professional, was surprisingly well versed in the mazes of doctrines and rules of federal and state appellate courts, which shows years' worth of litigation.


The cases were still lost, both in state and in federal courts, for reasons well described in my this blog.


Even before I started this blog, I have been contacted by many people whose federal cases were already lost or who had no hope winning those cases because of barricades of judicially created doctrines that block their access to courts.


Yet, one case stood out.  It introduced me to the area of federal law I did not know about and which I am deeply ashamed of, more than of anything else I encountered during my years as a civil rights attorney.


It is statutory discrimination against civil rights litigants in federal courts who represent themselves and who are poor and obtained from the court a "poor person status" with a fee waiver.


The current filing fee in the federal district court where I am practicing is $450.00.  For many people such a price tag on access to justice makes that access impossible.


To alleviate that problem, federal courts allow civil rights litigants to apply for what is called "in forma pauperis" (IFP) status, or a leave to proceed as a poor person, with a waiver of filing fees.


Yet, when an IFP status is granted, the poor (and mostly uneducated) pro se litigants are not told that with the IFP status comes such conditions that they should beware the courts bearing such gifts and instead should struggle, but pay that $450.00 fee, because for $450.00 they are agreeing to egregious discrimination by federal courts, authorized by the U.S. Congress, in 28 U.S.C. 1915.


Pursuant to 28 U.S.C. 1915(e) a federal court has authority to dismiss a civil rights case of an IFP pro se litigant sua sponte (on its own motion) if the action or appeal is "frivolous or malicious",  28 U.S.C. 1915(e)(B)(I);  fails to state a claim on which relief may be granted, 28 U.S.C. 1915(e)(B)(ii), or seeks monetary relief against a defendant who is immune from such relief.


Now, concepts of immunity are not reflected in statutes, most of them (with the exception of judicial immunity from injunctive relief when sued in official capacity, an odd addition to 42 U.S.C. 1983)are judicially created doctrines with multiple exceptions and intricacies of application.


The statute clearly provides that at any time, including the time before defendants are even served with the lawsuit (which was the case for the person who brought to me the description of their case after such a dismissal) a federal court may, on its own motion, not only dismiss the case, but also impose costs upon a poor pro se litigant!


Moreover, if the court does such sua sponte dismissals three times, a prisoner/pro se litigant's access to court as an IFP person will be simply barred, whether he actually remains a poor person or not:


28 U.S.C. 1915(g): 


 


"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.


 Furthermore, under 28 U.S.C. 1915(h):


" (h) As used in this section, the term “prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.


It is apparent that the federal statute makes no difference between a convicted individual and a detained or accused individual who is still covered by presumption of innocence.


Even then, whether a person has been convicted and sentenced for commission of a crime or not, that does not automatically cancel his civil rights, which is what is being presented in this statute.  I draw the readers' attention to the fact that it is presumed that the dismissal is correct.  So, it takes three careless dismissals to block an access to court of an individual who is "detained" (not convicted yet),  "accused" (not convicted yet),  violated "pretrial release" (not convicted yet), or violated diversionary program ( as an alternative to conviction, so not convicted).


Presumption of innocence goes out the door.


Detention is presumed lawful.


Accusations is presumed evidence.


Delinquency which is a sealed proceeding is revealed.


The law is put on its head.


But that is not all that is wrong with this statute.


Normally, after a defendant is served, a defendant must timely file an answer with affirmative defenses or


In IFP cases, the court must serve the defendant.


In the case that was complained about to me by my confidential client, the court dismissed the case on its own motion BEFORE that same court fulfilled its duty to the IFP litigant to serve the defendants.  The defendants were powerful public officials and agencies, judges and courts.


Some defenses upon which the court dismissed the lawsuit, were not jurisdictional, they were affirmative defenses that were for defendants to timely raise, and if they would not be raised, they would be waived.


Plaintiff would have benefited by being allowed to at least argue on her own behalf.


The U.S. Congress allowed federal courts to be advocates for powerful governmental defendants by giving a court to sua sponte dismiss cases before they were even served based on the court's own understanding, on its "own motion" as to what constitutes "frivolous" constitutional claims is, oxymoronic, because constitutional arguments are counter-majoritarian by their nature and what is "frivolous" is a majoritarian argument, moreover, such rules are vague, poorly defined and allow arbitrary enforcement.


American court proceedings are adversarial.


When a court is moving sua sponte to dismiss a case of a poor person, the court acts as that person's opponent and thus completely cancels out the whole idea of access to a fair and impartial tribunal.


Yet, in the even that the IFP pro se plaintiff had money, that plaintiff would have been entitled, with the very same claim, to hire an attorney, have that attorney serve the complaint, declare a default if defendants do not appear in the action timely, oppose any motions to dismiss and bring forth arguments that could change the court's mind and change previous caselaw  if previous cases are decided incorrectly.


An IFP pro se litigant is not only at a disadvantage because, well, the pro se plaintiff is poor, but the pro se plaintiff has no legal representation and no time or opportunity to be heard before the court dismisses the case before the lawsuit is even served and before any affirmative defenses are raised!!!


To add insult to the injury, in my confidential client's case the court not only dismissed the case before serving defendants, but told the IFP pro se plaintiff that if plaintiff takes an appeal from the dismissal, it will be presumed to be in bad faith and frivolous.


IFP pro se plaintiffs often have low educational level.


Yet, the courts and the U.S. Congress which enacted this statute, appear to presume and require that IFP pro se litigants be educated in judicial doctrines without any representation, even while professors, courts and attorneys differ as to the meaning, scope and the very validity of the doctrines that illiterate IFP pro se plaintiffs are presumed to know, "or else" their access to the court will be barred.


The issue of the IFP pro se federal lawsuit that was dismissed sua sponte was, sadly, about access to Family Court files for pro se appellants to prepare a Pro Se Record on Appeal, as well as caps on compensation of assigned counsel on appeal in Family Court cases in New York state.


The plaintiff did not ask for money damages, only for prospective injunctive and declaratory relief, and that relief was supposed to be granted, because otherwise the plaintiff would be left without access to state court and without  any remedy at law, despite the obvious fact that her constitutional rights as an appellant were violated.


28 U.S.C. 1915 is an example of shameless discrimination against the poor and the pro se litigants in American courts, leaving poor people without any legal remedies pertaining to violations of their civil rights.