MY Petition by any legitimate judicial reading of an EXTRAORDINARY WRIT that I filed on June 10, 2011 with the First Circuit of Appeals was based on the Crime Victims' Rights Act of 2004 ("CVRA" or "the Act"), 18 U.S.C. § 3771 and unarguable usurpation. The case docket had no judicial panel assigned through June 20th when a decision “DENIED” without an opinion was posted on the docket. The docket now has a June 13th entry that states there was a judicial panel assigned. The USCA1 corrupt staff blocked the WRIT from the Judges, stole my $450.00, and access to the case through PACER was manipulated so that the case could not be accessed by any party’s name and only by case number 11-1668 (as of 9/22/2011 I discovered you could no longer access the case unless you did the search with only the case number). On 1/27/2011 PACER DENIED any case access change; I was told by the PACER agent that he was able to access the case with party search. I was unable to access the case through party search until late afternoon on 9/28/2011. On the morning of 9/28/2011, I sent an Email to PACER and the Senate Judiciary Committee with PDF’s showing my multiple access attempts using party name which continued to retrieve only the message “NO RECORDS FOUND”. I stated that the change in case access was in violation of the public’s right to court records (people search most often by party name to get the case number) and requested that I be informed as to whom requested the change in how the case could be accessed and a statement of legal basis (there is absolutely no legal basis) for the change. Late afternoon on 9/28/2011 I received an email from a PACER agent showing me that he was in fact able to access the case by party name; I then searched by party name and the alteration in access had been remedied;
however, I received no information as to how, why and under who’s authority the change in access occurred which was validated by multiple files I created from direct downloads of the PACER search pages that showed “NO RECORDS FOUND”. Example:
18 U.S.C. § 3771. Crime victims' rights (3) MOTION FOR RELIEF AND WRIT OF MANDAMUS.--The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the
denial shall be clearly stated on the record in a written opinion.
One of my statements for relief requested in my motion for judicial reassignment (Dkt. #69) of, both, the Magistrate and the US District Judge was protection from further conspiracy. Magistrate Judge Sorokin “DENIED” this motion with Docket Text and terminated the motion from the docket so that the US District Judge would never see it. My filings with the US District Court allege that I am a crime victim with supporting evidence before I was aware of court staff involvement and after I was aware of court staff involvement; my motions for contempt that implicated court staff were blocked and never received any due process. The docket I down loaded from USCA1 on June 20, 2011 was still without a case assignment. The Decision was filed by the court on June 20, 2011 by George Kretas case manager.
“DENIED” WITHOUT AN OPINION
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JUDGMENT entered by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Denied. [11-1668] (GK)
In case you are not up to date on this case Sandra L. Lynch is also the undersigned on the bogus judicial misconduct order I received on May 18, 2011. Florence Pagano of the circuit executive office was the attorney who was charged with looking into my allegations of misconduct; Pagano is well aware that the case was under usurpation and I believe the bogus first order is forged. I believe there are other
orders regarding judicial misconduct from the circuit executive office that are forged; I believe she is now taking no effort in making these forgeries to taunt and flaunt her perceived power and exemption from law. By the way Florence’s message on her office phone 9/28/2011 (all day) relayed that she was in the office but had either stepped away from her desk or was on the phone (her dogs were barking in the background as the message played); remember folks we pay these people! The tax paid public servants of the Massachusetts federal court system have no problem with committing perjury, forgery, conspiracy, obstruction of justice or aiding and abetting each other in abandoning their fiduciary duty to the tax payer. The corrupt public servants appear to think because they work for the judiciary that they are exempt from law as do the corrupt attorneys to whom the court staff steer profits; the attorneys in this case did not anticipate my investigative skills and were well aware that they could never win in a legitimate court of law; you should see how they wiped out my discovery request with the help of corrupt court staff. The corrupt attorneys are apparently milking their guilty clients and document in the court record that the cost to their clients has become insurmountable as they each time place the blame of the cost to their clients on me!!!!! HINT: super lawyer status has the appearance that lawyers in this supposedly prestigious category are actually alleged criminals who have no problem violating the model rules of professional conduct or federal law in their zealous defense of their guilty clients; attention honest lawyers (surely there must be a few): if you have been labeled as a “super lawyer” you can thank your corrupt colleagues for tarnishing any prestige you believe has been bestowed upon you because you did not gain prestige but only a label warning your opposition that a zealous representation of his or her client must
include bearing a continual watch for your acts of fraud upon the court and collusion with court staff. Give Tully and Childs a call and thank them for tarnishing further your already very tarnished profession!!! Patrick Egan of the law firm Jackson Lewis has noted on his Jackson Lewis profile page [Patrick Egan focuses on labor law, and is considered "a
lawyer with a no-nonsense approach who comes up with innovative solutions to difficult issues.”] The aforementioned apparently equates innovative with illegal tactics and folks if you hire them and participate in these alleged illegal “innovative” tactics good luck suing them for malpractice when you lose because they immunize themselves from any malpractice action by engaging you in the criminal activity. Please keep in mind that Patrick Egan hand delivered the Defendants’ Position Statement to the EEOC which was a completely false statement with absolutely no material support; in fact the main attachment to this statement was contrary to what was in the statement. The EEOC then ignored every contact I attempted to make with them and even turned me away after I presented in person to the Boston office five days after Egan’s hand delivery. I was informed that the investigator had already left for the day at 3:00 PM after I had already sat in the office for a good half an hour. I wanted to report that I was being retaliated against. Before I left, I handed a written statement regarding the retaliation which has never been responded to by the Defendants and the retaliation charge was not mailed out by the EEOC until eight months later at my insistence; the retaliation charge was not in the FOIA record. A faux investigation initiated in March 2010 only because I contacted Washington DC. My evidence was not considered, I received a determination letter signed by an investigator who by statute had no authority to sign in June 2010 with a notice of right to file suit and I was denied reconsideration when I submitted evidence that proved the Defendants had submitted a false record. I find the following extremely suspect.
SEE SUSPECT MONEY TRANSACTION AND DOCKETS THAT FOLLOW
Note the large money transaction BY DEFENDANT WEBSTER on 7/9/2010. Defendants’ Position Statement was HAND DELIVERED BY PATRICK EGAN TO THE EEOC ON 7/15/2010 yet by all my best available information the newly purchased home was never OCCUPIED BY WEBSTER. They list on their annual business report in an inappropriate block the address of this home as the address for their registered agent who is WEBSTER and so clearly the house has not been rented. They use Webster’s maiden name as the registered agent and her actual address in the appropriate registered agent block. They filed no annual business report in the year 2011 for the year 2010. I suspect their corrupt attorneys guided them in the fact that is cheaper to pay the daily fine for not filing with the SOC than the fine for filing false information after I submitted this information to the court.
OUR CIVIL AND CONSTITUTIONL RIGHTS MEAN NOTHING TO OUR PUBLIC SERVANTS IF THERE IS A CHANCE FOR EXTRA MONEY IN THEIR POCKET!
Above you see Webster’s actual residence and I allege the second home was bought as a way to cover up illegal money transactions by the Defendants to government officials through their corrupt attorneys. Folks if you are considering putting your loved ones in the care of Pleasant Bay Nursing & Rehabilitation Center in Brewster Massachusetts you must first consider all the evidence supported criminal activity I have documented throughout my filings with court including the alleged highly probable pay off to federal public officials. Keep in mind that per the case law the extreme effort these nursing home operators and owners drove through the tactics of these corrupt civil defense attorneys to get my complaint that was solid in merit dismissed with prejudice has them admitting to all the material allegations of the Complaint. The effort they used to ensure that my documentation never passed before the eyes of an honest judge is astounding.
Roxanne Webster is on the Massachusetts Board of Nursing Home Administrators and used this position as an avenue to blacklist me from employment in Massachusetts; pauper status prevents one from hiring an attorney and these attorneys knew the court would not appoints one. The US District Court of Massachusetts has a general court order (GENERAL ORDER 09-4 May 1, 2009) regarding their pro bono program stating that indigent Plaintiffs in suits against former or current employers are not entitled to the pro bono program. I am not a lawyer nor am I an idiot; this general court order is endorsed by the Judges of the US District Court of Massachusetts by typing all of their names (not even /s/ judge’s name—just typed) and is no way, state or fashion a legal general court order. I have researched other US District Courts; the general orders that I have looked at have the hand signature of the Chief Judge. I have found no pro bono programs through my research in the US District Courts that exclude indigent Plaintiffs access to these programs if they are involved in employment related litigation. The corrupt Jackson Lewis Attorneys appear to be using the court general order to their advantage; there was no mediation through the EEOC and by the course of the investigation, or lack thereof, it appears they paid off the EEOC and then ensured litigation would follow by responding to my letter of compromise with antagonistic letter. In collusion with corrupt public servants who appear to be steering profits toward these corrupt attorneys a pretense litigation then ensued. GENERAL ORDER 09-4 May 1, 2009 Plan for the Appointment of Counsel for Indigent Parties in Certain Civil Cases “This Plan does not apply to the appointment of counsel for pro se plaintiffs who assert employment-related claims against current or former employers.” No organization in Massachusetts who provides pro bono attorney assistance in Massachusetts will assist you if you are in employment litigation because of the court’s general order including the Disability Law Center. TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1915. Proceedings in forma pauperis (which means you are indigent and have motioned to proceed without paying the court fee which is the case in my action before the US District Court; however, that status didn’t seem to be working out
too well so I chose to forego eating properly and paid the $450.00 filing fee for the Extraordinary Writ to the First Circuit Appeals Court—that didn’t work out too well either because no matter my financial status I am up against the corrupt) (e)(1) The court may request an attorney to represent any person unable to afford counsel. This folks this is “Racketeering” between corrupt court staff and “elite” corrupt attorneys. Clerk of the Court, Sarah Allison Thornton, likes to refer to the public servants who work for the federal judiciary as the “Court Family”. Well this “Court Family” appears to function more like a “Mob Family” and Thornton appears to be the mob boss. After multiple attempts through appropriate court filings, emails through the general court email, mail through the US Mail, and process server delivered filings to the case judge and the chief judge no resolution to the usurpation came forth. I emailed Thornton and requested her assistance in getting the case back on a legitimate legal tract. The “Mob Boss” responded with a CERTIFIED LETTER SENT AT HER DIRECTION TO ME BY THE US MARSHALL threatening me with criminal federal and state harassment charges if I emailed any clerk in the court again. By the way folks where I live in disabled housing in Washington State I do not have a phone. All of the aforementioned strictly alleged and my opinion based on my own experience, evidence collection during the course of this injustice and web research where others make the same alleged accusations regarding the Jackson Lewis Law Firm, the cesspool of corrupt Massachusetts lawyers and the corrupt public servants who live off the tax payer dollar and anything else they can get!!!
THE DOCKET on my case over at USCA1 HAS NOW BEEN ALTERED WITH A PANEL ASSIGNMENT ENTERED JUNE 13, 2011 BY (SBT). I will assume the alteration in access to the Extraordinary Writ through PACER was changed because they didn’t want anyone to see the Extraordinary Writ. Eight days after the “DENIED” without an opinion one of the corrupt Jackson Lewis attorneys made an appearance in the case over at the appeals court (one might ask why an attorney would make an appearance eight days after the case is decided? --ANSWER: So it appears that the docket was accessed for a legitimate
reason and a June 13th judicial panel could be entered on the docket by corrupt court staff).
06/13/2011 CASE submitted. Panel: Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge; Jeffrey R. Howard, Appellate Judge. [11-1668] (SBT)
The corrupt staff over at the US District Court on June 28th also committed blatant perjury, forged a US District Judge’s name and illegally dismissed my complaint with prejudice. I pointed out this illegal dismissal in my post dismissal request for reconsideration with motions and my evidence submitted to the court seemed to really bother the alleged corrupt public servants because they took my ECF System filing privileges away, named me a vexatious litigant and barred me from ever filing another law suit in the US District Court of Massachusetts and signed with the /s/ a US District Judge’s name; they also claim they certified that any appeal on my part would be frivolous (as if I would waste any more time and money filing anything in these two corrupt courts). The corrupt public servants and the corrupt attorneys worked very hard to make sure no US District Judge or Appeals Court Judge would ever see the case. Not one filing in over a year has had any due process or legitimate court process. Affidavits ignored, Judicial Notice Request ignored, rule, law and authorities ignored. No notice of appearance by the corrupt attorneys was ever filed. Magistrate Judge Sorokin is among the corrupt and continued to approve undersigning orders with his name even though he clearly had no jurisdiction. The case was a ruse from the start where absolutely no legitimate court process would ever occur; they entered the case as a social
security/immigration case on the docket so the case management system would not trigger a scheduling conference. These people have been pulling this crap for years; remember Chester and Margaret Chalupowski (if not Google them and see how our taxed paid public servants and the corrupt cesspool of attorneys in this state tortured them for years). I truly doubt that the Chalupowski’s neglected to file that last complaint amendment they were directed to file by Judge Young which effectuated the final dismissal of their action. The law firm Nixon Peabody (upstanding firm as far as I know) should be offended by the fact that Brian M. Childs who used to be one of their associates did not update his information prior to this USAC1 case because it associates their firm with this corruption (see the first docket below). Brian M. Childs now works for the corrupt law firm Jackson Lewis and is being trained in corrupt tactics by this firm; his mentor in corruption for this case is Guy P. Tully. Childs is the fool who filed an appearance eight days after the decision. These morons knew I was in Massachusetts and when Tully filed his appearance he also sent me the notice via email because he knew I was not electronically filing over at the appeals court; I received no such courtesy when Childs filed his appearance. Tully made his appearance five days into the case; he must of wanted to make sure that they pulled off keeping the WRIT from the view of a Judge. As I stated, the court cannot stay the decision on this type of WRIT past five days.
It is also interesting that the case opening Docket download by me on June 13th around 1:30PM (this shows in the PDF properties) is the date that the corrupt staff over at USCA1 chose to use when they altered the appeals court docket sliding in a panel of judges with a June 13th date. The alleged criminals must have figured that was the only docket I downloaded (USCA1 opening Dkt. is an exhibit to my reconsideration request Dkt. # 88) The opinions docket in the US District Court had not one opinion (9, 20, 53 or 57) on it from when Barbara Morse, Pro Se Staff Attorney, had control of the case; the opening docket at USCA1 had named only Magistrate Judge Sorokin. On June 15th (same day Tully made an appearance), (GK) notes he made a modification to the appeals court docket text; the June 20th docket then included Judge O’Toole.
THE FIRST DOCKET I DOWN LOADED JUNE 13TH
THE SECOND DOCKET I DOWN LOADED WHEN THE DECISION “DENIED” WITHOUT AN OPINION CAME ON JUNE 20TH THE THIRD DOCKET I DOWN LOADED ON SEPTEMBER 22ND AFTER I DISCOVERED THE CASE ACCESS IN PACER HAD BEEN ALTERED. NOTE THE JUNE 13TH ENTRY! NOTE THE JUNE 28TH APPEARANCE!
I tried to tell the FBI about the alleged forged signature regarding the May 18, 2011 bogus judicial misconduct order I received which is still not posted on the misconduct orders page of the USCA1 web site. The Circuit Executive office received my complaint on March 8, 2011; now
nearly seven months later my complaint (re: more than obvious usurpation and misconduct by the Magistrate) is still without a decision as the petition for a three judge review lingers. In my petition I asked that the Extraordinary Writ be included with my other documentation of misconduct—remember folks we pay these corrupt public servants. I sent the FBI a file I made with dates and signatures, supposedly those of Chief Judge Lynch, from the page on the USCA1 web site that post misconduct complaint orders with the two newest orders appearing to be a blatant forgeries. I also sent them the PDF of my May 18th misconduct complaint order where I allege a forged signature since it is not yet posted. Apparently the Boston FBI is disinterested as I received an email back informing me they do not accept attachments. I called the FBI in seven other major cities and they all accept attachments. During my latest call to the FBI the duty officer I was speaking with refused to let me make an update to my complaint regarding this corruption in the judiciary; he essentially hung up on me.
Remember folks we pay these people!
From: Boston <[email protected]
> Sent: Wednesday, September 21, 2011 2:04 PM Subject: RE: forged signatures--send to public corruption
Hi Laura: Due to Security Protocol, we can not open up attachments or enclosures, please mail your complete information to FBI Boston, One Center Plaza, Suite 600, Boston, Ma 02108, Attn: Complaint Desk. Thank you for your concern. FBI Boston
Check ‘em out yourselves folks! Again, my May 18th order is not posted; there is another May 18th posted. http://www.ca1.uscourts.gov/?content=judmisfiles.php&dt=2011
Another May 18th order
The latest postings - the first one I noticed on September 21st
Reading "Dishonest Service Fraud With Obstruction of Justice in th..." on Scribd http://www.scribd.com/doc/62737753 This leads to other reads.
Reading "The Criminal Enterprise at the Us District Court of Massa..." on Scribd http://www.scribd.com/doc/64869599 Shows the case docket and I note their corrupt tactics in red. Reading "Cover-Up of Corruption and Violation of Constitutional Ri..." on Scribd http://www.scribd.com/doc/64299428 May explain the unresponsive FBI and DOJ see the update page 22!! I USED MY WORD PROCESSED DOCUMENT TO POST THE WRIT BECAUSE IT WAS EASIER THAN TAKING SNAP SHOTS OF A 25 PAGE DOCUMENT FOR THIS POSTING. The decision has the court stamp. QUESTION TO THE TAX PAYERS OF AMERICA!! DO YOU WANT THE FEDERAL GOVERNMENT SPENDING YOUR TAX DOLLARS DEFENDING THESE CORRUPT PEOPLE IN A CIVIL SUIT IN ANOTHER CIRCUIT OR DO YOU WANT THE FEDERAL GOVERNMENT PUTTING ALL THESE CORRUPT PUBLIC SERVANTS AND CORRUPT LAWYERS BEFORE A GRAND JURY TO ACHIEVE INDICTMENT AND SUBSEQUENT JUSTICE?
I SUGGEST YOU WRITE THE MASSACHUSETTS DOJ AND EXPRESS YOUR THOUGHTS!!! MULTIPLE DEMANDS FOR GRAND JURY HEARINGS COULD BE THE START TO HALTING CORRUPTION IN THE MASSACHUSETTS FEDERAL JUDICIARY!!! I will post all their names soon!!
Carmen Milagros Ortiz United States Attorney U.S. Department of Justice John J. Moakley United States Courthouse 1 Courthouse Way - Suite 9200 Boston, MA 02210
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No: 11-1668
IN RE: LAURA J. MCGARRY Petitioner.
ON PETITION FOR AN EMERGENT EXTRAORDINARY WRIT TO THE UNITED STATES DISTRICT COURT OF MASSACHUSETTS-BOSTON RELIEF SOUGHT Petitioner, Laura J. McGarry, plaintiff in a Civil Action No. 1:10-cv-11343-GAO, captioned as Laura J. McGarry v. Geriatric Facilities of Cape Cod, Inc., et al, In the United States District Court of Massachusetts, hereby applies, pursuant to the provision of the Constitution of the United States of America under the First, Fourteenth and Fifth Amendment, Title 28 of the U.S. Code, § 1654 and Rule 21 (a) of the Federal Rules of Appellate Procedure, for an emergent writ of mandamus to be issued by this court directing the Clerk of the Court and the Honorable Judges of the United States District Court of Massachusetts to schedule an emergency hearing for this Plaintiff before an Article III Judge. Plaintiff resides in the State of Washington, has thus far prosecuted her case as an in forma pauperis pro se litigant and is disabled; her only income SSDI. The Plaintiff will not be able to afford future trips to the Commonwealth. The Plaintiff is currently in the Commonwealth because her father who resided here has died. Plaintiff wishes to resolve and halt usurpation that has resulted in void, not voidable, but void orders that have stalled her action in the US District Court of Massachusetts. The improprieties and violation of the Plaintiff’s constitutional rights thus far during this action dictate that justice can only be served by allowing this Plaintiff her right to be heard before a US District Judge as well as the fact a stalled unwarranted contempt recommendation Dkt. #80 has her demanding a hearing before a US District Judge in her objection to said R & R Dkt. #81. Plaintiff is requesting an emergency hearing, that if granted as requested in this petition, be scheduled as soon as possible in front of a US District Judge other than
the current assigned US District Judge but is, also, requesting that the assigned US District Judge be present. Plaintiff has an objection to Judge Zobel presiding only because of the fact that involved Magistrate has clerked for her in the past. Plaintiff request that the authority of this court declare orders that have been administered through a clear and unarguable usurpation void and order that the void orders and orders based on void orders be vacated from the case docket. The Plaintiff would like to return to her home in Washington State most preferably by June 14 th but will delay as needed to resolve the unconstitutional issues that have presented in her action before the US District Court. Back Ground Plaintiff alleges she has been purposefully denied meaningful access to the court and is a victim of oppression and intimidation; the oppression started in the work environment where she was discriminated against on the basis of disability and continued through retaliation. Obstruction of justice and denial of equal protection under the law was prevalent during the EEOC investigation (see Dkt. #51 exhibit 6) and now with threats of unwarranted contempt, sanctions and complaint dismissal Defense Counsel in collusion with the Pro Se Staff Attorney whose contemptuous efforts have been supported, or at minimum ignored, by a Magistrate Judge have subjected this Plaintiff to continual acts of intimidation and harassment. The improprieties during the course of this action have caused the Plaintiff an insurmountable amount of psychological stress that in turn causes her physical stress which plays havoc with her health status. The oppression Plaintiff has been under since her relationship with the Defendants has been significantly life changing. Retaliation was prevalent; unable to secure employment Plaintiff had to relocate from her eight year home in August of 2009 to a new community in Massachusetts. One Defendant who holds office on the Massachusetts Board of Nursing Home Administrators ensured that the retaliation followed and blacklisted Plaintiff from work in Massachusetts. Plaintiff required a stress related hospitalization in June of 2010 and subsequently, after being advised by medical professionals, she relocated back to Washington State. Plaintiff had to leave her chronically ill son and frail 82 year old father behind. Plaintiff’s father died on May 12 th in a less than stellar nursing home, not of his choosing away from family and friends, financially and spiritually broke. The Plaintiff was only able to spend the last five days of her father’s life with him as she watched him suffer a prolonged and miserable death that would not have happened if she had still been present to manage his care. Had this case not been under usurpation and stalled Plaintiff would have been able to reciprocate monetary gifts to assist and ensure a stable safe environment for her father as he did for her during the times she was financially strapped. Plaintiff was in a continuous strapped financial state related to her inability to secure
employment because of the retaliation. The gifting Plaintiff’s received from her father left him without resources for himself during his time of need. If this action had been not usurped but prosecuted under established law and the provisions of the constitution it would have been resolved back in 2010. The purposeful stall and fraud in this action is the tool chosen by the Defense to effectuate a mask over the fact that the Defendants have brought a meritless Defense to the court. The avoidance of responsibility by the defendants, unethical defense by the attorneys and cover up of fraud and attorney misconduct by the Magistrate have stalled this case which has resulted in devastating consequences to the Plaintiff and her family. It is far past time to open the door to justice which up to this point has been slammed shut; in spite of her relentless efforts to resolve the continuous violations of her First Amendment Right to have her grievance heard before the court this Plaintiff has continually been denied justice and blocked from a US District Judge. The course of this litigation is shameful. Statement of Facts and Orders Challenged Since the initiation of this action Plaintiff has been blocked from Article III access and subjected to void orders that have followed fictitious memorandum; Plaintiff has been harassed by Defense Counsel, a Pro Se Staff Attorney and a Magistrate Judge under clothe of usurpation, collusion, vexatious and frivolous motions and oppositions, unwarranted delay of decisions, and now an unwarranted Motion for contempt by the Defendants where the Magistrate unjustly recommends the motion be allowed. The Magistrate issued a report and recommendation (Dkt. 80) on March 23, 2011 recommending that Plaintiff be found in contempt; this report and recommendation is by a Magistrate who has no jurisdiction over this action and accepted assignment of this action knowing the order of reference (Dkt. #57) was void because the reference was not ordered by a US District Judge. The reference to the Magistrate originated in an “ORDER” (Dkt. #57) after a clear and unarguable usurpation by a pro se staff attorney. Plaintiff’s motion (Dkt. #51) for injunctive relief was requesting to enjoin the pro se staff attorney from any participation in the case and from communicating with defense counsel based on well supported allegations of collusion. The “RULING” (Dkt. #57) on Plaintiff’s motion (Dkt. #51) was constructed entered and filed by the same pro se staff attorney from whom the Plaintiff was seeking relief without the knowledge of the US District Judge. There had been significant indicators of collusion between this Pro Se Staff Attorney and Defense Counsel including, but not limited to, the disappearance of hard copy exhibits and a deliberate attempt to interfere with a timely service of process. Continual stalling on the case
had left motions lingering including motions that requested the disqualification of Defense Counsel related to documented fraud upon the court and request for a default judgment. The fact that Plaintiff was never given notice for a scheduling conference triggered her to further investigate the progression, or lack thereof, of the case. The Pro Se Staff Attorney’s “RULING” (Dkt. # 20) to Plaintiff’s motion (Dkt. #17 and # 19) for injunctive relief back in September 2010 had Plaintiff questioning the legitimacy of the ruling because it was void of facts that were presented in the complaint and in the motion; it did not comply with established law and ignored submitted exhibits that supported the motion. When directly asked by the Plaintiff, back in September 2010 during a Skype call made by the Plaintiff, the Pro Se Staff Attorney denied that she constructed Dkt. #20. Plaintiff subsequently discovered she could directly download the PDF’s from PACER and check the properties of the documents (right mouse click on the PDF) and found the denial by the pro se staff attorney to be a blatant false statement; the properties of the document (Dkt. #20) showed it was created on Sunday September 26, 2010 and noted the author to be the Pro Se Staff Attorney; the document was entered on Sunday, September 26, 2010, and the file date was manipulated back to, September 24, 2010, the previous Friday (see Docket activity report for this case at # 20 which clearly shows the filing date was manipulated). Plaintiff determined that the language of Dkt. #20 and the fact that it was created and entered on a Sunday was sufficient evidence that no US District Judge had been involved in the “RULING” of her motion that requested injunctive relief. The aforementioned was a clear violation of legislative authority and the Plaintiff’s rights. The course of this action also dictates that during Plaintiff’s conversation with the pro se staff attorney back in September that the pro se staff attorney falsely affirmed a direct question posed by the Plaintiff which queried if her Complaint (Dkt. #1) had actually been read by a judge. With documented evidence and well described circumstantial evidence that supported allegations of collusion between this pro se staff attorney and the defense counsel, on January 19, 2011 the Plaintiff filed a motion (Dkt. # 51) to enjoin the pro se staff attorney from participation in her case and communicating with defense counsel. Plaintiff also Moved (Dkt. #52) on January 19, 2011 with a third request to disqualify Defense Counsel. Any question that lingers regarding the pro se staff attorney’s “RULIING” (Dkt. #57) regarding Plaintiff’s motion (Dkt.# 51) for injunctive relief needs to consider the fact that no competent US District Judge was going to have the subject of relief in an injunctive motion draft the opinion and orders to said motion; even if an US District Judge had authorize such memorandum and order the inappropriate assignment with the resulting bizarre order that prohibits the Plaintiff from referencing the docket, a violation of Plaintiff’s first amendment rights, voids the order. The memorandum and orders of Dkt.
#57 did not come from the US District Judge’s computer. Study of multiple other decisions known to be drafted by the assigned US District Judge show PDF’s properties from his computer to show the following data: Application: Microsoft (R) Office Word 2007 PDF Producer: Microsoft (R) Office Word 2007 PDF Version: 1.5 (Acrobat 6.x) Plaintiff had articulated in her motion Dkt. #51 how she had determined that the PDF’s entered and filed by (PSSA, 4) were constructed by the pro se staff attorney. After the pro se staff attorney read Dkt. #51 she constructed Memorandum and Order (Dkt. #53) with her name and on her usual work computer as shown in the properties of the document; it was apparent that she had not quite caught on to the indicators Plaintiff was using to identify the origin of the filed documents. Plaintiff informed Defense Counsel with an email that they should not get too excited about the ruling (a ruling that lacked fact, law and rule)from Dkt. #53 because it came from the pro se staff attorney; with the filing of Memorandum and Order (Dkt. #57) it became apparent that communication between the Defense Counsel and the pro se staff attorney had taken place as the pro se staff attorney then moved to a different computer to construct the “RULING” of Dkt. #57; Dkt. #57 was entered and filed by (PSSA, 4). The pro se staff attorney, again tried, as she had with Dkt. #53 to mimic the assigned US District Judge’s style but failed. Dkt. # 57 PDF properties state: Application: PDF Producer: Acrobat Distiller 8.2.5. (Windows) PDF Version: 1.4 (Acrobat 5.x) See Dkt. # 70 exhibit 1 After evaluating the language, style and properties of the PDF for (Dkt. #57) Plaintiff determined that on January 28, 2011 with no judicial oversight the Pro Se Staff Attorney had “Ruled” entered and filed [see Dkt. Activity report for this case @ #57 (PSSA, 4)] memorandum and orders regarding Plaintiff’s motion (Dkt. #51) for injunctive relief knowing she was the subject of the requested relief (see exhibit 2 of Dkt. #58). Plaintiff moved on January 30, 2011 for contempt (Dkt. #58) against the pro se staff attorney and Defense Counsel. A “Ruling” (Dkt. #61) undersigned by the Magistrate (not a report and recommendation) on Plaintiff’s motion (Dkt. # 58) for contempt was filed on February 1, 2011. The “RULING” (Dkt. #61) on Plaintiff’s contempt motion (Dkt. #58) was the third memorandum and order in what would now become a chain of void orders that link back to the second void order (Dkt. #57) where a reference to the Magistrate was not under the authority of the US District Judge.
The Plaintiff alleges the contempt “RULING” (Dkt. #61) undersigned by the Magistrate was actually written by the pro se staff attorney (see exhibit 5 of Dkt. #64) and had ORDERS that restricted Plaintiff’s filings with the Court; these orders follow a void, not voidable, but void order (Dkt. #57) that was a clear and unarguable usurpation by the pro se staff attorney and the ORDERS of Dkt. #61 are also void, not voidable, but void. The void nature of the “RULING” of Dkt. # 61 is reinforced by the provisions of 28 U.S.C. § 636(b). The “RULING” (Dkt. #61) on Plaintiff’s motion (Dkt. #58) for contempt was limited to fact finding and a report and recommendation by the Magistrate. The order restricting Plaintiff’s filing with the court is a Memorandum and ORDER (Dkt.# 61) in response to Plaintiff’s motion (Dkt. #58) for contempt against the pro se staff attorney and defense counsel and clearly does not comply with legislative authority dictated by Section 636(b) of the United States Magistrates Act or as dictated in U.S. Magistrate Rules for U.S. The District of Massachusetts under Three- DISPOSITIVE PRE-TRIAL MOTIONS . There was no notice of the Plaintiff’s right to object to the contempt ruling (Dkt. #61) undersigned by the Magistrate that denied contempt and excused defense from oppositions. Here, the contempt (Dkt. #58) pertained to conduct while the case was still before the US District Judge and if referred, at all, would have been referred by the US District Judge to the Magistrate in accordance with 28 U.S.C. § 636(b). Considering the fact that Plaintiff's motion (Dkt. #58) states "The fraudulent orders [the pro se staff attorney] wrote signing off by typing the /s/ of a U S District Court Judge is beyond egregious" there would have been no need for the US District Judge to reference a fact finding or report and recommendation to the Magistrate; a denial or allowed motion would have come directly from the US District Judge who would have known firsthand if (Dkt. #57) was actually his order or a bogus ruling fraudulently signed. The reference validates that the US District Judge had no knowledge of the injunctive relief “RULING” constructed, entered and filed by the pro se staff attorney. The Plaintiff has never consented to the jurisdiction of the Magistrate as per 28 U.S.C. Sec. 636 (c) and per 28 U.S.C. Sec. 636 (b) the Magistrate had no authority beyond a report and recommendation regarding Plaintiff’s motion (Dkt. #58) where not only were ORDERS written that restricted Plaintiff’s court filings but the Defense was excused from filing an opposition. Dkt. #57 in addition to the injunctive relief request by the Plaintiff also “RULED” on Plaintiff’s third motion (Dkt.# 52) to disqualify Defense counsel for fraud upon the court. Further, Plaintiff not only insisted in her motion (Dkt. #58) for contempt that her case be put immediately before the US District Judge due to multiple improprieties regarding the progress of her action but she was never told by any clerk that she had a right to object to the Magistrate reference and the reference was forced when the docket clerk entered an electronic order on January 31, 2011 regarding the Magistrate order of reference in Dkt. # 57 which was entered by and ordered under the unarguable usurpation of the pro se staff attorney on January 28, 2011. Magistrate Rules for The District of Massachusetts Rule 8 states that the manner of referral to the magistrate
judge of specific matters in a case shall be in accordance with the provisions of Rule 8(b); [8(b) Manner of Referral(4) All other civil matters may be referred to the magistrate judges only by order of a district judge. The order must specify the matters to be considered and the action to be taken by the magistrate judge.] The docket clerk on January 31, 2011 simply slid [Motions referred: 58 Emergency MOTION for Contempt] the January 30, 2011 Motion for contempt filed by the Plaintiff in with the ELECTRONIC ORDER entered REFERRING CASE to Magistrate with a file date of 1/28/11. Plaintiff never received the policy and procedure General Order 10-1 (Dkt. 64 exhibit 5) regarding Magistrate jurisdiction that per the general order is to be issued upon complaint filing. The electronic order entered January 31, 2011 ignored Plaintiff’s caption in Dkt #58 where she requested immediate Article III protection. The docket clerk ignored an email that was sent by the Plaintiff moments after he entered the electronic order that referenced the case to the Magistrate where she insisted the reference be removed and her case go before the US District judge ( see Dkt. 64 exhibit 2—letter at end of this exhibit). The Deputy clerk was also left a voice mail by the Plaintiff with the same request which was also ignored. The “RULING” (Dkt. #61) on Plaintiff’s Motion (Dkt. # 58) for contempt had ORDERS that DENIED her motion for contempt and restricted her filing. No notice that Plaintiff had a constitutional right to object to the Magistrate’s “RULING” of which he had no legislative authority to rule in the first place was provided. The order restricting Plaintiff’s filing with the court is a Memorandum and ORDER (Dkt.# 61) in response to Plaintiff’s motion (Dkt. #58) for contempt against the pro se staff attorney and defense counsel and clearly does not comply with legislative authority dictated by Section 636(b)(1)(B) of the United States Magistrates Act. The Magistrates Act and the U.S. Magistrate Rules for The District of Massachusetts set forth that the Magistrate is limited to proposed findings of fact and recommendations which are subject to de novo review. The aforementioned procedures deal exclusively with nonconsensual references; the Plaintiff’s action which is a civil action has had absolutely no consent to the jurisdiction of the Magistrate by the parties and is not subject to the procedures in accordance with 28 U.S.C. 636(c) and as previously stated the contempt in Dkt. #58 was while the case was still before the US District Judge; none of the other provisions of 28 U.S.C. § 636(e) apply. The US District Judge, had he actually referred to the magistrate would have received a report and recommendation under procedure established by 28 U.S.C. § 636(b). The continued collusion and blocking of this Plaintiff from a US District Judge is validated by the deliberate straying of procedure by the pro se staff attorney, the clerks of this assigned District Judge and the Magistrate.
There has been less than insufficient control over the Magistrate by the District Court; there has been none. The order of reference did not have the consent of the district court; it is void, not voidable, but void. Further without the consent of the parties per Local RULE 16.1 and a valid reference from the US District Judge the Magistrate did not have the authority to convene the scheduling conference. EARLY ASSESSMENT OF CASES LR 16.1 (h) Definition of Judge. As used in this rule, “judge” refers to the United States District Judge to whom the case is assigned or to the United States Magistrate Judge who has been assigned the case pursuant to 28 U.S.C. § 636(c), if the Magistrate Judge has been assigned the case prior to the convening of the scheduling conference mandated by this rule. An ordered (Dkt. #61) scheduling conference was held February 14, 2011; the Plaintiff attended by phone, only out of fear that her case would be illegally dismissed if she did not attend, and her son, who lives in Massachusetts, attended in person. The Pro Se Staff Attorney wrote Dkt. #61 but signed the Magistrate’s name and at the scheduling conference the Magistrate validated that this invalid and void, per lack of legitimate reference as well as legislative authority, document was under his approval. The Plaintiff posed a query to the Magistrate at this scheduling conference after he instructed, “You have to follow Judge O’Toole’s orders and not file with the court,” Plaintiff then stated, “Oh, I thought those were your orders” as these were the “ORDERS” he had just moments previous validated as being his. The Plaintiff’s son, who was sitting in court, relayed to the Plaintiff that the Magistrate during this apparent moment of confusion then appeared to look at the document as he stated, ”Thanks for reminding me”. As this scheduling conference was coming to a close the Plaintiff made an attempt to restore the integrity of her case and posed two questions to the Magistrate. The Magistrate stated, “NO” when the Plaintiff directly asked if she could file an appeal to the US District Judge in regards to “HIS ORDERS” (Dkt. #61) that placed restrictions on her filing with the court. The Magistrate also stated, “NO” when Plaintiff asked if she could file to make a request for reconsideration to the US District Judge regarding the “RULINGS” in Dkt. #53 and Dkt. #57 which were clear and unarguable usurpation by the pro se staff attorney. The restrictions on her filing were again stated in Dkt #67 & 68 (same document docketed twice) and also mailed to the Plaintiff. Plaintiff alleges that if the transcript from this 2/14/2011 scheduling conference does not validate exactly what she has stated herein that transcript has more than likely been altered; Plaintiff’s son is more than willing to be deposed. The docket upon case assignment clearly indicated that if the trial Judge issued an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to
the Named Magistrate. All memorandum and orders prior to Dkt. #61 are signed with the US District Judge’s name but written by the Pro Se Staff Attorney with zero judicial oversight. Plaintiff filed her Contempt Motion (Dkt. # 58) on January 30, 2011. Not only did she document the activity that pointed to active collusion between the Defense Counsel and the pro se staff attorney she also asked that the orders by this pro se staff attorney be removed from the docket and that her filings with the court be restored from their now terminated status. The Contempt Motion’s caption stated ["CASE MANAGEMENT BY ARTICLE III JUDGE” “DECLARATION THAT THERE HAS BEEN NO LEGITIMATE CONSTITUTIONAL COURT PROCEDURE SINCE THE FILING OF THIS CASE"]. Plaintiff's Motion (Dkt. #58) for contempt filed 1/30/2011 made a direct request for relief and restoration of Plaintiff’s constitutional rights in the caption of the motion and, as per her right, that the action have Article III Judge oversight. The Docket Clerk on 01/31/2011 entered an electronic order to reference the Magistrate Judge from the void, not voidable, but void order of Dkt. #57 filed 1/28/2011 and he noted the file date for the entry to be 1/28/2011 and as previously stated slid Plaintiff’s contempt motion filed 1/30/2011 into this electronic order entry. All motions and oppositions including Plaintiff’s second motion (Dkt. #43 & #45) to disqualify counsel, with documented fraud upon the court, followed by a motion for sanctions (Dkt. #46), followed by a motion (Dkt. # 48) requesting a scheduling conference, which was ignored as the due mandatory scheduling order date of January 11, 2011 per FRCP 16 passed, had lingered until Plaintiff filed the motion (Dkt. # 51) requesting injunctive relief and removal of the pro se staff attorney from her case. Continued usurpation with antagonistic rulings followed and then the Magistrate, instead of corrective action, joined the conspiracy to continue the violations of this Plaintiff’s rights and block her from a US District Judge. The Pro Se Staff Attorney “RULINGS” (Dkt. #53 & Dkt. #57) ignored fact, well established authorities that the Plaintiff had cited in her filings including Supreme Court Law and the FRCP; acts of fraud by the Defense described in Plaintiff’s pleadings that are clearly supported by the record were also ignored as well as documented evidence of Title 18 violations during a federal agency investigation that included but not limited to blatant false statements and submission of falsified records. The evidence that files had been switched in the ECF System was handled by prohibiting this Plaintiff from referencing the docket; clearly another title 18 violation being covered up. The memorandum and orders constructed by the Pro Se Staff Attorney by their bizarre content simply validate Plaintiff’s initial allegations of collusion between pro se staff attorney and the defense as Plaintiff clearly articulated in her motion for injunctive relief (Dkt. #51). The orders of Dkt. #53, Dkt. #57 and Dkt #61 violate the constitution, legislative authority, and the due process the Plaintiff is entitled to in the prosecution of her action; the only authorities cited in Dkt. #53, #57, and #61 are authorities that threaten unwarranted
sanctions and complaint dismissal based on fabricated memorandum that grossly distorted Plaintiff’s filings with the court. Defenses’ Contempt Motion (Dkt. # 71) filed March 4, 2011 is based on their belief that the Plaintiff should have been complying with the void orders of both Dkt. #57 and Dkt. # 61. Plaintiff has filed documents with the court post these void rulings that assert her constitutional right to be heard before the court through a Notice (Dkt. #64) of Intent to File Mandamus; the body of the Mandamus (Dkt. #64 exhibit 1) was served on 2/9/2011(Dkt. # 69 exhibit 1) to the assigned District Judge’s Administrative Secretary and filed on 2/7/2011 in the ECF System. Plaintiff received no response to her Notice of Intent to File Mandamus. The week after the scheduling conference Plaintiff received no response to her email that was sent to the Magistrate’s clerk requesting permission to file and was unable to reach the clerk after calling the clerk several times over a few days so on February 23, 2011 Plaintiff filed a motion (Dkt. # 69) requesting reassignment of, both, the Magistrate Judge and the US District Judge and a Motion (Dkt. # 70) to vacate void orders specifically requesting that the motion to vacate (Dkt. # 70) be ruled on by a US District Judge after reassignment. [Plaintiff communicates using email or Skype and when she places calls she cannot leave a return number; she does not have a telephone). The Magistrate denied Plaintiff’s motions for judicial reassignment and vacate void orders Dkt #69 & Dkt. #70 respectively with docket text and terminated them from the docket on March 2, 2011 and March 3, 2011 (see deadlines/ hearings docket in the ECF System for case 1:10-cv11343). The only notice to the US District Judge that there is a pending motion where the Plaintiff is requesting reassignment of a US District Judge is in the Magistrate’s report and recommendation (Dkt. # 80) dated March 23, 2011. Plaintiff OBJECTED to the magistrate report and recommendation (Dkt. # 81) dated April 5, 2011 and requested a hearing before a US District Judge; to this date there has been no response to the Plaintiff’s objection. Provisions of 28 U.S.C. § 636(b) were required for the Motion (Dkt. #70) vacate void orders that had specifically requested a ruling by the reassigned US District Judge. Defense apparently objects to Plaintiff’s fair comments as she describes their behavior associated with episodes of fraud upon the court; the evidence is documented directly in the record and on the docket. The case docket was randomly entered on December 3, 2010 four days after Plaintiff’s Motion (Dkt. #46) for sanctions against defense; a docket clerk indicated a modification on, both October 25, 2010 at #29 and November 5, 2010 at #34 that was neither needed or taken; the PDF files Dkt. # 35- #40 that had been submitted into the ECF System by the defense as scanned PDF’s on November 5, 2010 were noted by the Plaintiff on December 31st to be in the PACER system as word processed PDF’s; Plaintiff’s investigation into the
situation found the December 3, 2010 random entry into the case and unnecessary notation on the docket by the docket clerk. Interestingly Dkt. #57 filed by the pro se staff attorney has orders that prohibit the Plaintiff from referencing the docket. Defense had used a ploy to thwart Plaintiff’s search of authorities since most, if not all, of their authorities were erroneous to their position presented in their motions and oppositions and because the initial documents were scanned there were no hyperlinks to any authority. In defense opposition (Dkt. # 36) to Plaintiff’s motion (Dkt. #28) and motion addendum (Dkt. #33) to Strike all of Defendants’ Affirmative Defenses the Defense changed the Lexis number and misspelled the party’s name citing an adverse authority as support for their position and concealed the adverse authority in a foot note; this adverse authority was established in the US District Court of Massachusetts – no hyperlink could be established because of the intentional errors in transcription and when the files were switched this authority remained without a hyperlink. A footnote in Defenses’ motion to strike (Dkt. #37 & #38) referred to Plaintiff’s Motion addendum (Dkt. #32), that cited US Appeals Court authority in support of her document, with the statement, [“This motion addendum is of no moment—it offers no legal basis whatever to support the Response---and should by no means affect striking of Plaintiff’s Response”]. Defense also stated in a foot note (Dkt. #36) that [“Although Plaintiff’s Motion Addendum is nothing more than yet another attempted volley that misses its mark, it does point up the dire need for a net in this match.”] Defenses’ memorandum for the two strike motions they filed uses erroneous authority and an attempt is made to reword the rules of FRCP to suit their need of the moment; these were unquestionable frivolous motions. These are the types of frivolous filings continuously submitted by the Defense which have no basis in law yet the Pro Se Staff Attorney “RULED” (Dkt. #53) in Defenses’ favor and typed the name of a US District Judge as the undersigned of court ORDERS she filed with no oversight or approval by a US District Judge. Defense counsel have presented no defense for their clients beyond trickery, deceit and outright fraud and apparently the Defense team finds Plaintiff’s fair comment that describes behavior associated with their well documented vexatious defense ploy offensive; they also apparently find Plaintiff’s assertion of her constitutional rights and description of how her constitutional rights have been offended offensive. Hence; Defenses’ contempt motion memorandum (Dkt. #72) was filed stating their requested relief should be complaint dismissal with prejudice and they also requested that Plaintiff be barred from appeal. The resolution of this Contempt Motion filed March 4, 2011 continues to linger. Plaintiff’s objection Dkt. #81 complies with the specificity requirement of Rule 72(b); her objections are specific to facts in the record and supported by citation to the record, law and
rule. Plaintiff’s objection (Dkt. # 81) and opposition (Dkt. #78) to the contempt motion clearly demonstrates that the contempt is based on void orders and is supported by established authority. There is no certification of the facts in the Magistrates report and recommendations (Dkt. #80); the document is simply a replay of the previous usurped rulings which contained no specificity to the facts in the record. The Deadlines/ Hearing docket for this case has never been mark as satisfied in the associated column for any deadline beyond the response to summonses by the Defendants. There was never an order on the US District Judge’s Docket referring the Contempt Motion (Dkt. #71) by the Defense to the Magistrate and it is unlikely that Judge O’Toole is aware of this contempt motion, the pending R & R or Plaintiff’s OBJECTION. The response from Judge O’Toole regarding Plaintiff’s February 23, 2011 motion for reassignment to a different US District Judge has yet to come forth. Plaintiff has found no other reference to the Magistrate where the stipulation—no dispositive motions—had not been noted other than on her docket and finds it peculiar that such a stipulation is lacking when there is absolutely no consent to the Magistrate’s jurisdiction and simply another indicator of the absent Article III oversight. Plaintiff also filed Motion (Dkt. #74)requesting a stay on discovery document due citing an ill son who was hospitalized and preference to await the US District Judge’s ruling on Motion (Dkt# 69) regarding reassignment and (Dkt. #70) vacate void orders. The Magistrate’s Ruling (Dkt. #75) denied the motion and admonish Plaintiff for making the request with further threats of sanctions and complaint dismissal. Plaintiff has also filed misconduct charges in which the first order from the Circuit Executive Office will be challenged by petition because it is also absent the facts in the record as described herein where all of the same facts were presented to the Circuit Executive Office in the initial complaint and supplemented by multiple emails with attachments. Most peculiarly this order denies the manipulation of the file dates clearly shown on the docket activity report and finds no irregularities associated with the contempt ruling Dkt. #61 or the docket text rulings by the Magistrate; the order is a blatantly deficient and denies any of the findings that this Plaintiff has described just as described herein which are well supported by the record, legislative authority and the rules of the court. The report does not include assessment of the transcript from the scheduling conference of 2/14/2011 as Plaintiff had requested and does not specify what part of the records were reviewed. Plaintiff has taken every pro active step possible to assert her right to be heard before the court and prosecute her action; all of her efforts have been blocked and failed as US Supreme Court Law, First Circuit Appeals Court authorities, authorities from other US Appeal Courts and authority established in the US District Court of Massachusetts have been ignored and outright fraud by the defense counsel tolerated. The FRCP, LR, and legislative authority regarding the powers of the Magistrate have also been ignored.
The Magistrate did not have legislative authority to deny the motion to vacate void orders nor did he have the authority to terminate the motions from the docket without review by an US District Judge; the Magistrate continues to hold Plaintiff’s case hostage with her filing restriction now modified, supposedly a step up, to where she must file notice and first receive the Magistrate’s approval before she will be allowed to file any Motion with the court and is allowed one notice a week. Plaintiff finds any such notice would be nothing less than an act in futility. Plaintiff also finds it interesting that this “lesser” filing restriction was noted in a “Ruling” that wiped out her discovery request and timed to knowledge of a pending misconduct complaint. Plaintiff is unable to reach the docket of an US District Judge and filings previously made to the US District Judge assigned to this case were blocked by the pro se staff attorney and / or clerks of his chambers as evidenced by the lingering of her motions prior to this pro se staff attorney’s fit of usurpation which requested judicial review, judicial notice, judgment on the pleadings, default judgment, disqualify opposing counsel, related to fraud upon the court, sanctions, request for a scheduling conference and even the intent to file Mandamus have shown no indicators that any filing made by this Plaintiff has ever passed before the eyes of an US District Judge or that the Plaintiff has had, as per her right, any Article III protection. Prior to the Pro Se Staff Attorney’s “RULING” on the injunctive motion(Dkt. #51) and aware of the injunctive motion this Pro Se Staff Attorney “RULED” (Dkt. #53) on several motions that had been filed as far back as October 25, 2010 which included two emergency motions to disqualify defense counsel. These “RULINGS” Denied all of Plaintiff’s Motions and Granted Defendants all of their Motions; this Memorandum and Order was entered on 01/20/2011 by the Pro Se Staff Attorney and she manipulated the file date to state 01/19/2011 (see Dkt. Activity report for this case at #53 which clearly shows the docket manipulation). The court administrative procedures for the ECF System clearly state that a document is filed when entered into the ECF system upon receipt of the NEF and no document that was created on the 20th could possibly be filed on the 19th of the month; the document of Dkt. #53 has properties that indicate it was created on January 20, 2011 and that the author is the pro se staff attorney. Plaintiff had filed the injunctive motion (Dkt. #51) and third motion (Dkt. #52) to disqualify counsel on 01/19/2011. On 02/01/2011 this same Pro Se Staff Attorney issued a “ruling” on the Contempt Motion only now she was signing with the electronic signature of the Magistrate Judge; the earlier “rulings” the Pro Se Staff Attorney has signed with the electronic signature of the U S District Court Judge. The pro se staff attorney constructed Dkt. # 61 on the computer that is used by the Magistrate’s clerk. Both of the Magistrate’s clerks mimic the style of the Magistrate in their draft documents. Dkt.
#61 did not even come close to the style of the Magistrate. See Dkt. # 58 exhibit 2 and Dkt. #64 exhibit 5. This case has been nothing less than pretense litigation with no Article III oversight. Every order in this case past the initiating orders, also written by this Pro Se Staff Attorney but appropriate as far as allowed duty (screening for jurisdiction and claims upon which relief can be granted), is an illegitimate order written by this Pro Se Staff Attorney with no judicial oversight while in collusion with the defense. The Magistrate joined in after he was referenced in a void, not voidable, but void order; the Magistrate DENIED Plaintiff her right to Article III oversight further validating that by legislative authority he is without any jurisdiction over matters in this action. All orders by the Magistrate are void, not voidable as is his Report and Recommendation (Dkt. #80) that this Plaintiff be found in contempt. Plaintiff has not yet attained the transcript from the 2/14/2011 scheduling conference and would like to remind the court that her son was a witness to this Magistrate denying her right to review by the District Judge. The Magistrate clearly had no intent of letting the Plaintiff prosecute the portions of her complaint that allege RETALIATION IN VIOLATION OF MGL 149 Sec.187 or the retaliation in violation of the ADA as indicated by the orders of Dkt. # 77 where the discovery request Plaintiff made in Dkt. #76 in relation to these allegation were stricken from the record. An exhibit to this discovery request that clearly showed that the Defendants had submitted false and fictitious records to the EEOC was ignored as was the fact that their answer at #189 of the complaint stated [“deny knowledge or information sufficient to form a belief as to the truth…”] indicating that, bizarrely, they lacked knowledge of who worked for them and what positions their employees held. The memorandum and orders of Dkt. #53 by the Pro Se Staff Attorney are antagonistic rulings that she made after she read the motion for injunctive relief of which she was subject. Both Dkt. #53 and #57 are not based on fact, law or rule and when looked at in relation to the given motions and oppositions are actually bizarre, taunt power and control, and are clear violations of Plaintiff’s constitutional rights as well as any due process in the prosecution of her case. This is without question an action under usurpation and purposefully stalled. CONCLUSION Plaintiff was intentionally reduced to a pauper by the Defendants; a status that effectuated her inability to afford an attorney and reduced risk of Defendants’ scheme being exposed. Mean while the law firm collects continuous attorney fees as Plaintiff has to combat their bogus submissions to the court and well planned executed schemes of fraud upon the court.
This has been an exhausting and difficult task for Plaintiff who is a stroke victim with residual deficits; Plaintiff has to apply significant extra effort with unfamiliar task if memory is required to adequately complete the task. Plaintiff has had to spend her time during most of the hours of each day to research, prepare and construct documents in an unfamiliar field for what has been nothing more than ten months of pretense litigation that has had no Article III oversight. This pretense litigation continued past Defendants’ answer (Dkt. #21) that was essentially nonresponsive consisting of false statements and unsupported denials to a 41 page complaint pled with particularity supported by 47 exhibits. At no time did the pro se staff attorney present to the US District Judge the actual merits of this action. When no action came from the court 21 days after service of process to the Defendants Plaintiff addressed the Defendants’ deficiencies and fraud with two well supported motions, a response with further particularity duly required after reading Defendants’ deliberate, essentially, non-responsive answer and one amendment adding count X which was already well supported in the Complaint. Plaintiff’s Motions were then followed by bogus defense motions and oppositions. Subsequent filings to the court by the Plaintiff have been to combat fraud that along with the four filings post the answer went without ruling until the filing of the Injunctive Motion against the PSSA. The first Motion (Dkt. #27) to disqualify counsel describing how fraud had been carried to the court was followed by fraud. The second motion (Dkt. #45) to disqualify counsel was followed by further fraud and the switching files of in the ECF system. Plaintiff motioned (Dkt. #51) to enjoin the pro se staff attorney from her action and a storm of usurpation followed where Plaintiff’s action continues to be sabotaged by erroneous rulings completely void of fact, rule and law; the case is again stalled as blocking from Article III protection continues while the bogus contempt recommendation and Plaintiff’s objection to the same lingers. This case is an unarguable usurpation and justice has been denied to this Plaintiff. Authority The function of the writ of mandamus is to enforce, not to establish, a claim of right; the office of the writ is to execute, not to adjudicate. To warrant control by mandamus, there must be an existing, clear, unconditional legal right in relator, and a corresponding present, imperative, unconditional duty upon respondent, and a default upon respondent therein." "An order of mandamus compels the performance of a statutory duty owed to the applicant.... (T)there must be a public duty to act and that duty must be owed to that particular applicant; there must have been an express demand made to the delegate that he or she act; and he or she must have refused to do so."
WENGER v. ACETO Supreme Judicial Court of Massachusetts, Norfolk Argued Feb. 7, 2008. -March 27, 2008….we cannot deny any citizen the constitutional right to petition the courts to seek legal redress. Jody Ann GERAS, Plaintiff-Appellant, v. LAFAYETTE DISPLAY FIXTURES, INC., DefendantAppellee, United States of America, Intervenor-Appellee. No. 83-2728.United States Court of Appeals, Seventh Circuit 742 F.2d 1037 Aug. 1984. @39 But there are limits to how far the line between nondelegable and delegable judicial work can be allowed to shift without making a mockery of Article III. The proper role of the judicial adjunct, who in the federal setting may be defined as anyone who helps with the work of Article III courts but whose conditions of employment are not as prescribed in Article III, is to advise and assist the real judge. It is not to be the real judge, only called something else. "Courts are constituted by authority, and they cannot go beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal." Vallely v. Nortnern Fire & Marine Ins. Co., 254 U.S. 348, 354 (1920). “We need not decide whether there was a proper reference to the magistrate judge under § 636(b) and the District of Colorado local rules because even if there was, the magistrate judge had no authority to enter a final order on the matter at issue here”. Jonathan Guy, Et. Al. V. William T. Beierwaltes And Lynda L. Beierwaltes, United States Court Of Appeals Tenth Circuit (2006). The Federal Magistrates Act, 28 U.S.C. Sec. 636, "details magistrates' functions regarding pretrial and post-trial matters, specifying two levels of review depending on the scope and significance of the magistrate's decision." Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 2245, 104 L.Ed.2d 923 (1989). We have designated the two categories of magistrates' orders as "self-operating" and "non-self-operating." United States v. Flaherty, 668 F.2d 566, 585 (1st Cir.1981). "Self-operating" orders, which cover most pretrial and discovery matters, are valid when made and can be "appealed" by a motion for reconsideration directed to the district court. See Sec. 636(b)(1)(A); Local Magistrates Rule 2(b). The "non-self-operating" orders are specified in section 636(b)(1)(A) and (B), see also Local Magistrates Rule 3; they are not valid until after the district court accepts the magistrate's report and recommendation and enters an order or judgment. United States v. Flaherty, 668 F.2d at 585. First Amendment to the Constitution of the United States Fourteenth Amendment to the Constitution of the United States Fifth Amendment to the Constitution of the United States Federal Civil Rules 60 28 U.S.C. 636(b) & (e) U.S. Magistrate Rules for The District of Massachusetts
ELECTRONIC CASE FILING ADMINISTRATIVE PROCEDURES General Order 10-1 US District Court of Massachusetts LR for the US District Court of Massachusetts Model Rules of Professional Conduct 18 U.S.C. § 241 Conspiracy against rights In Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965) it was held that in a "motion to dismiss", the material allegations of the complaint are taken as admitted." Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278. Vacate Void Orders or administer orders to that motion did not extend beyond fact finding with a report and recommendations 925 F.2d 853 (5th Cir. 1991) footnote 5. See Aldrich v. Bowen, 130 F.3d 1364, 1364 (9th Cir. 1997) (finding that a magistrate judge's judgment was invalid where the record contained "no written consent of the parties as required"). We [Judges] have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given. The one or the other would be treason to the Constitution." [clarification added] U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821). The Defendants have "directly 'infected' the actual cause of action before the court," and are not "not merely guilty of unrelated past conduct." (Pond v. Insurance Co. of N. Am., 151 Cal. App. 3d 280 at 290 (1984).) See In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994); United States v. Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir. 1985) (“Section 455 clearly contemplates that decisions with respect to disqualification should be made by the judge sitting in the case, and not by another judge. It requires the judge to disqualify himself when any one of the statutory conditions is met. It makes no provision for the transfer of the issue to another judge.”) That Court also stated that Section 455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice." The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954).
“Section 636(e) requires the district judge to conduct a de novo hearing.” Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 904 (3rd Cir. 1992) See also Bingman v. Ward, 100 F.3d 653, 657 (9th Cir. 1996)(Federal magistrates have no power of contempt themselves but must certify the facts to a judge of the district court.”). Federal Rule of Civil Procedure 11 provides generally that, in presenting a pleading, motion, etc., to the court, one is certifying that to the best of that person's knowledge, information, and belief, formed after reasonable inquiry, that any factual contentions therein have evidentiary support. United States Court of Appeals, First Circuit. - 923 F.2d 7 Decided Jan. 14, 1991 28 U.S.C. Sec. 1291 gives the courts of appeals jurisdiction over appeals "from all final decisions of the district courts of the United States." As the Third Circuit has said: "To be a 'final' order of the district court within the meaning of section 1291, the magistrate's decision must have been reviewed by the district court, which retains ultimate decision-making power." Siers v. Morrash, 700 F.2d 113, 115 (3d Cir.1983), and cases cited therein. See also Horton v. State Street Bank & Trust Company, 590 F.2d 403, 404 (1st Cir.1979). Save for a specific statutory exception, this rule is iron-clad: a magistrate's order is not a 'final' order which can be reviewed directly by a court of appeals. The reasons for the rule are salutary: "[N]ot only will review at the district court level save parties the expense and difficulty of appeal, but it will also give the appellate court the benefit of the district court's reasoned consideration." Sick v. Buffalo, 574 F.2d 689, 693 (2d Cir.1978). A void judgment is from its inception a legal nullity. With this principle in mind, we must consider appellants' argument that the judgment entered was void, and that relief is proper regardless of the time elapsed, because relief from a void judgment has no time limitations. United States v. Berenguer, 821 F.2d at 22; Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 649 (1st Cir.1972)."In the interests of finality, the concept of void judgments is narrowly construed." United States v. Berenguer, 821 F.2d at 22; Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645. A judgment is not void merely because it is or may be erroneous, V.T.A., Inc. v. Airco, Inc., 597 F.2d at 224; Lubben v. Selective Service System Local Board No. 27, 453 F.2d at 649, or because the precedent upon which it was based is later altered or even overruled. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374-78, 60 S.Ct. 317, 318-20, 84 L.Ed. 329 (1940); Marshall v. Bd. of Education, Bergenfield, N.J., 575 F.2d 417, 422 (3d Cir.1978); Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645. A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process. V.T.A., Inc. v. Airco, Inc., 597 F.2d at 224. It is essential to state, that total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction, and that only "rare instance[s] of a
clear usurpation of power" will render a judgment void. Lubben v. Selective Service System Local Board No. 27, 453 F.2d at 649.
Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986). Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985). A void judgment is one which, from its inception, was, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985). Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983). "Fraud" or "fraudulent" denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information. It is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; "We [Judges] have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given. The one or the other would be treason to the Constitution." [clarification added] U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821). Judges who would willfully discriminate on the ground of race or otherwise would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U.S.C. § 242. See Greenwood v. Peacock, supra, at 384 U. S. 830; United States v. Price, 383 U. S. 787, 383 U. S. 793-794 (1966); United States v. Guest, 383 U. S. 745, 383 U. S. 753-754 (1966); Screws v. United States, 325 U. S. 91, 325 U. S. 101-106 (1945); United States v. Classic, 313 U. S. 299 (1941). Cf. Monroe v. Pape, 365 U. S. 167, 365 U. S. 187 (1961). And Judge Learned Hand explained that, while no court can make a decree that binds “the world at large,” a non-party “may be punished if he either “abet*s+ the defendant or *is+ legally identified with him.” Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir. 1930). More recently, this court has held that “a nonparty may be held in contempt where the nonparty aids or abets a named party in a concerted violation of a court
order.” Independent Fed’n of Flight Attendants v. Cooper, 134 F.3d 917, 920 (8th Cir. 1998).
United States v. United Mine Workers, 330 U.S. 258 (1947) 330 U. S. 309 & 310 Only when a court is so obviously traveling outside its orbit as to be merely usurping judicial forms and facilities may an order issued by a court be disobeyed and treated as though it were a letter to a newspaper. Short of an indisputable want of authority on the part of a court, the very existence of a court presupposes its power to entertain a controversy, if only to decide, after deliberation, that it has no power over the particular controversy. "Courts are constituted by authority, and they cannot go beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal." Vallely v. Nortnern Fire & Marine Ins. Co., 254 U.S. 348, 354 (1920). A judge has an ethical obligation to "initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a . . .lawyer." Canon 3(B)(3) of the Code of Conduct for United States Judges (2000). Supreme Judicial Court Rule 3:07, Canon 1, DR 1-102 (A) (4), (5), and (6), as appearing in 382 Mass. 769 (1981), provide: "(A) A lawyer shall not: . . . (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law." Rule 60(b)(4) permits a court to grant relief from a "void" judgment. "Void" means the court lacked the power to enter the judgment, usually when it lacked jurisdiction over the parties or the subject matter. A judgment can also be void if the court violated "due .process of law" or engaged in" a plain usurpation of power. " Matter of Whitney-Forbes, 770 F.2d 692,696-97 (7th Cir. 1985); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220,224-25 (loth Cir. 1979); United States v. Holtzman, 762 F.2d 720,724 (9th Cir. 1985) (a plain misinterpretation of statutorily delegated power is "blatant usurpation ") 'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated ' Under subsection (4) above, the only question for the court is whether the judgment is void; if it is, relief from it should be granted. Similarly, under subsection (5), if the underlying judgment is void, the judgment based upon it is also void. Moreover, the Rule places no time limit on an attack upon a void judgment, nor can such a judgment acquire validity because of laches on the
part of him who applies for relief from it. 3 Barron & Holtzoff, Federal Practice and Procedure 1327 (1958). Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828): Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." The requisite fraud on the court occurs where "it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense." Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)... While broad, the trial court's discretion is not unlimited. The [trial] judge must consider the proper mix of factors and juxtapose them reasonably. "Abuse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them." Independent Oil and Chemical Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988); see also Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988) (to warrant reversal for abuse of discretion, it must "plainly appear that the court below committed a meaningful error in judgment"). Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985). Fraud on the court may occur when acts of party prevent his adversary from fully and fairly presenting his case or defense (Abatti v. C.I.R., 859 F.2d 115, Me., (1990). Fed CivProc 2654. . . Plaintiffs' fraudulent scheme of manufacturing evidence to support their business loss claim and subsequently covering-up their scheme constituted "fraud on the court" warranting sanctions. (Derzack v. County of Allegheny, Pa., 173 F.R.D. 40ff affirmed 118 F.3d 1575 (Pa. 1996). Fed CivProc 2791. Fraud on the court doctrine permits court to overturn settled decrees and orders, and as a result is narrowly construed and is defined to most egregious cases, such as bribery of a judge or juror, or improper influence exerted on court by attorney, in which integrity of the court and its ability to function impartially is directly impaired. Fed Rules Civ. Proc. Rule 60 9b 0930, 28
U.S.C.A. (outen v. Baltimore County Md, 177F.R.D. 346. Affirmed 164 3F3d 625-Fed Civ Proc 2654. As in accordance with Attorney Malpractice, Chpt.2, Standard of Care, § 2:7. - Fraud. Fraudis defined as: Deceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right. Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it is an act, a word, silence, the suppression of truth, or any other device contrary to the plain rules of honesty. (Ballentines Law Dictionary. 3rd Edition )It has been held that an attorney’s opinion, as opposed to fact if knowingly false when offered, may be the basis for a finding of fraud.(Lietz v. Primcok  84 Ariz 273, 327 P2d 288, 67 ALR2d 1262) To be entitled to relief from judgment on theory that defendants committed "fraud on the court," plaintiffs had to show that defendants acted with intent to deceive or defraud court by means of deliberately planned and carefully executed scheme. Fed.Rules Civ. Proc.Rule 60(b)(3), 28 U.S.C.A. Hall v. Doering, 185 F.R.D. 639 (Kan. 1999). Fed CivProc 2654. In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court. We further conclude that a determination of fraud on the court may be justified only by "the most egregious misconduct directed to the court itself," and that it "must be supported by clear, unequivocal and convincing evidence." In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 195 (8th Cir.1976) (citations omitted). In Hazel-Atlas Glass Co. v. Hartford Empire Co. 322 U.S. 238 64 S.Ct. 997, 1000, 88 L. Ed 1250 addresses the issue of injury caused by Fraud on the Court by stating: "Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public institutions in which fraud cannot complacently be tolerated consistent with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud. Fraud upon the court, which is required for such an attack to succeed, is "limited to fraud which seriously affects the integrity of the normal process of adjudication, "Id. at 559, includes "only
that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases, Kupferman v. Consol. Res. & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972), and must be established by "clear and convincing evidence, "King v. First American Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002). See also Hadges v. Yonkers Racing Corp, 48 F.3d 1320, 1325 (2d Cir. 1995). There is at common law "a general right to inspect and copy public records and documents." Nixon v. Warner Communications, 435 U.S. 589, 597 (1978). The Court of Appeals reversed. United States v. Mitchell, 179 U.S.App.D.C. 293, 551 F.2d 1252 (1976). It stressed the importance of the common law privilege to inspect and copy judicial records...It is clear that the courts of this country recognize a general right to inspect and copy public records and document, including judicial records and documents. See, e.g., McCoy v. Providence Journal Co., 190 F.2d 760, 765-766 (CA1), cert. denied, 342 U.S. 894 (1951); ...American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies, see, e.g., State ex rel. Colscott v. King, 154 Ind. 621, 621-627, 57 N.E. 535, 536-538 (1900); State ex rel. Ferry v. Williams, 41 N.J.L. 332, 336-339 (1879), and in a newspaper publisher's intention to publish information concerning the operation of government, see, e.g., State ex rel. Youmans v. Owens, 28 Wis.2d 672, 677, 137 N.W.2d 470, 472 (1965), modified on other grounds, 28 Wis.2d 685a, 139 N.W.2d 241 (1966). There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights." Sherer v Cullen, 481 F 946 WHEREFORE, petitioner, Laura J. McGarry, respectfully prays that an emergent writ of mandamus be issued by this court directed to respondents, for a writ of mandamus to be issued by this court directing Clerk of the Court and the Honorable Judges of the United States District Court of Massachusetts to schedule a hearing for this Plaintiff before an Article lll Judge as soon as possible(Plaintiff needs to go home to Washington State), for a writ of mandamus to be issued by this court to respondents directing that the void Docket entries #20 #53, #57, #61, #67, #68, #77 and Dkt. #80 be vacated from the docket of Civil Action No. 1:10-cv-11343. Any further relief as the court may deem proper. Respectfully submitted,
Laura J. McGarry, Pro Se Massachusetts Contact Phone 413-335-5258 (borrowed cell belongs to Lerryn) PLEASE EMAIL DECISION to petitioner Laura J. McGarry and mail decision to her Washington State address noted below. Petitioner is visiting in Massachusetts and awaiting decision so she can attend a hearing before a US District Judge [email protected]
Laura J. McGarry 1717 Sheridan Road Apt. A- 50 Bremerton, WA 98310 [email protected]
(best contact) 360-516-8083 (daughter’s cell) Petitioner does not have a phone June 9, 2011 EXHIBITS--Refer to docket filings in the ECF System and their associated exhibits as noted for CASE No. 1:10-cv-11343 US District Court of Massachusetts PRIMARY EXHIBITS Dkt. #80, Dkt. #81, Dkt. #57, Dkt. #51, Dkt. # 20, Dkt. #53, Dkt. # 70 exhibit 1, Docket Activity report for this case @ #57, Dkt. #58 exhibit 2, Dkt. #58, Dkt. #61, Dkt. #64 exhibit 5, See Docket -- electronic order dated 1/31/2011, Dkt. 64 exhibit 2, Transcript of February 14, 2011 scheduling conference, (Dkt. #64), (Dkt. #69), (Dkt. #70), Dkt. #64 exhibit 1, Dkt. # 69 exhibit 1, deadlines/ hearings docket for case, docket activity report in the ECF System (include docket text option) @ #20, #53, date of 1/31/2011, date of 3/2/2011, date of 3/3/2011, Docket activity report include Docket Text option October 25, 2010 at #29 & November 5, 2010 at #34, (Dkt. #74), (Dkt. #75), (Dkt. #76) & (Dkt. #77) BACKGROUND EXHIBITS Dkt. #51 exhibit 6, Dkt. #17 and # 19, Dkt. #52, Dkt. #43, Dkt. #45, Dkt. #46, Dkt. # 48, (Dkt. # 71), Dkt. #32, Dkt. # 36--see foot notes, Dkt. #37 & #38--see foot notes, Dkt. #33, (Dkt. #72), & (Dkt. #78)
Certificate of Petitioner The undersigned declares under penalty of perjury that, to the best of her knowledge, the statements in the above petition are true.
Westfield, Massachusetts this 9th day of June, 2011. /s/ Laura J. McGarry, Pro Se
Certificate of Service I, Laura J. McGarry, the Petitioner hereby certify that on Thursday, June 9, 2011, I filed with the Clerk of the United States Court of Appeals for the First Circuit, via certified mail, the requisite number of copies of the Petitioner's Supplemental Brief per Federal Rule of Appellate Procedure 21 (FOUR COPIES INCLUDING ORIGINAL). The requisite numbers of copies of Petitioner's Brief were served, via certified mail, upon the following persons on June 9, 2011. Lead Attorney for the Defendants Guy P. Tully Attorney at Law Jackson Lewis LLP 75 Park Plaza Boston, MA 02116
Sarah Allison Thornton, Clerk of the Court Honorable Chief Judge Wolf Honorable Judge George A. O’Toole UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS John Joseph Moakley U.S. Courthouse 1 Courthouse Way - Suite 2300 Boston, MA 02210 617-748-9152 Dated: June 9, 2011 /s/ Laura J. McGarry, Pro Se