Will the United States Court of Appeals for the First Circuit act and end the violation of constitutional rights by corrupt court staff and "ELITE" meaning corrupt attorneys or will denial of due process and the Constitutional Right to bring a grievance before the Court continue with a final bogus document from this court? Will this Court in fact validate that the American tax payer is a slave to the corrupt public servant?
Content
Case: 11-1668
Document: 00116291660
Page: 1
Date Filed: 11/16/2011
Entry ID: 5595972
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ) LAURA J. MCGARRY, ) ) Case No. 11-1668 11-2292 Plaintiff/Appellant/Petitioner ) v. ) ) REPLY TO: GERIATRIC FACILITIES ) DEFENDANT‘S/APPELLEE‘S/RESPONDENT‘S OF CAPE COD INC., ) RE: CONSOLIDATED OPPOSITION 11-1668 d/b/a Pleasant Bay Nursing & ) RE: OMNIBUS RESPONSE 11-2292 Rehabilitation Center, d/b/a ) THIS IS A MATTEROF PUBLIC INTEREST Pleasant Bay Nursing Center LP, ) REQUEST THAT THE ENTIRE RECORD d/b/a Pleasant Bay Health & ) UNDERGO REVIEW - IN THE Living Centers; ) INTEREST OF JUSTICE THAT CASE JOSHUA ZUCKERMAN; ) BE IMMEDIATELY REMANDED TO THE RENEE MIKITA; ) US DISTRICT COURT IN FRONT OF A ROXANNE WEBSTER ) NEWLY ASSIGNED US DISTRICT JUDGE ) TO PROCESS A DEFAULT JUDGMENT Defendants/Appellees/Respondents ) AS PER Dkt. # 88, #93 & #97 ______________________________ ) Appellees through their Defense Counsel present to this court of appeals an OMNIBUS RESPONSE to this Appellant’s recent motions in which they merely underscore the frivolity of their pleading. The response is a replay of unauthorized court documents and an attempt to emphasize validity of these bogus court documents by attaching them to their response. The attachments are already in the abbreviated record transmitted by the US District Court and are the only documents transmitted by the US District Court in the abbreviated record; this Appellant’s direct verbal request to the District Court that the entire case record be transmitted to this court of appeals has been ignored. The inaction regarding the aforementioned request is perceived to be a clear admission of court staff involvement; other dockets of this court that involve pro se litigants do have docket entries showing that the US District Court transmitted the entire case record. How exactly does a court of appeals determine the validity of this Appellant’s allegation that all the filings by the court and the unauthorized defense counsel are bogus if all
Case: 11-1668
Document: 00116291660
Page: 2
Date Filed: 11/16/2011
Entry ID: 5595972
the documents these unauthorized rulings were supposedly based on are not read? The Defendants are simply trying to spoil evidence and objecting to this Appellant’s motion that the entire record be transmitted as per a rule 11.0 of this court is ludicrous.
The Massachusetts Supreme Court has recognized that Massachusetts courts have remedies for spoliation of evidence, i.e., exclusion of testimony in the underlying action, dismissal, or judgment by default. See Gath v. M/A-Com, Inc., 440 Mass. 482, 499, 802 N.E.2d 521, 535 (Mass. 2003). Sanctions should be carefully tailored to remedy the precise unfairness occasioned by the spoliation. Id. at 426; see also, Keene v. Brigham & Women‘s Hosp., Inc., 786 N.E.2d 824, 833-34 (Mass. 2003). Sanctions may be imposed even if the spoliation of evidence occurred before the legal action was commenced, if a litigant knows or reasonably should know that the evidence might be relevant to a possible action. Stull v. Corrigan Racquetball Club, Inc., 2004 WL 505141 (Mass. Super. 2004).
Inaction regarding the aforementioned by the public servants serving in this court of appeals would be disservice to the public and clear abandonment of fiduciary duty to the tax payer; this court of appeals has the power to correct and ensure that the public servants serving in US District Court understand that intentional violation of constitutional rights will not be tolerated. The Docketing Statement quite adequately articulates the abuse of power by staff of the US District Court including, but not limited to, extortion by directing the US Marshal to stifle this Appellant with the threat of criminal charges through certified mail and this Appellant demands that the letter receive Judicial Notice (see Dkt. # 98 attachment). This court of appeals also has the power to halt intentional violations of constitutional rights and further misconduct by these attorneys. The courts belong to the people not the corrupt. The American tax payer is not the slave of corrupt public servants and having tax pool monies provide the pay check for corrupt public servants who do not perform honest duty and abuse power does in fact define the American tax payer as their slave. The Constitution of the United States.
Defendants have nothing to substantiate their request to this court of appeals just as they had no merit to the defense they never brought before the district court through unauthorized attorneys and pretense litigation. Defendants refer to this Appellant’s motion requesting that the docket be
Case: 11-1668
Document: 00116291660
Page: 3
Date Filed: 11/16/2011
Entry ID: 5595972
corrected to reflect the reality that this Plaintiff was not any time under the jurisdiction of the magistrate as an ongoing abuse of court process. Defendants move to deny this Appellant’s Docketing Statement and for Summary Disposition claiming there has been no substantive basis for the appeal stated. Clearly they plan to continue attorney misconduct and their litigation tactic of deliberate misrepresentation. Unethical attorneys, again, have this disabled litigant doing unnecessary legal work to combat another one of their frivolous filings as their fraud upon the court continues in which fraud upon the court defines the substantive basis for this appeal; a well supported substantive basis which is why these attorneys who falsely appeared in the US District Court continue their M.O. by ensuring the case record never passes before the eyes of a judge as they continue to attempt to interfere with due process and falsely claim the Defendants are entitled to Summary Disposition. It is interesting how in Case No. 11-2292 that new notices of appearances promptly followed this Appellants motion for judicial notice where, both, attorneys had absent any named Defendant on their first filed Notice of Appearances. Their intentional false appearance in the US District Court to facilitate pretense litigation is in fact indirect criminal contempt and I demand that the case record receive judicial notice. The only acceptable Summary Disposition that would not be a miscarriage of justice also falls under Local Rule 27.0. Although much more than obvious error occurred, fraud upon the court should, similarly, reverse. Local Rule 27.0(c) In case of obvious error the court may, similarly, reverse.
"[An] attorney who agrees to represent a client in a court proceeding assumes a responsibility to the court as well as to the client." V.H. v. J.P.H., supra, quoting Hammond v. T.J. Little & Co., 809 F. Supp. 156, 159 (D. Mass. 1992). Mass. R. Prof. C. 3.1, 426 Mass. 1381 (1998) (lawyer shall not file suit "or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous") or of the "attorney's oath" he took under G. L. c. 221, § 38, when admitted to the bar ("I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid or consent to the same").
Case: 11-1668
Document: 00116291660
Page: 4
Date Filed: 11/16/2011
Entry ID: 5595972
The Docketing Statement, considering the particularity required, described as briefly as possible the fraud scheme initiated and carried in the US District Court and the issues that would be raised on appeal; it clearly point to many exhibits, including public records, that meet standards of evidence and should receive judicial notice. These Defendants and their attorneys submitted false statements and a false record to the EEOC and have been violating this Appellants constitutional right to due process and equal protection under the law ever since. Case dismissal is requested by Defendants and their attorneys because the record shows they conspired to promote and carry multiple Title 18 violations. The fact that the Extraordinary Writ filed with this court also fell to usurpation continued to keep this litigation off a legitimate tract. The docketing statement described the bizarre and unjust orders of Dkt. # 53 and #57 and how they were achieved through usurpation by the pro se staff attorney in collusion with these unauthorized counsel; the unauthorized rulings are favorable to the defendants based on their frivolous motions and oppositions as pleadings by this Plaintiff based on evidence, rule and existing law went ignored (see documents 27, 28, 29, 30, 32, 33, 41, 42, 43, 45,46, 48, 51, 52 and then see documents 35-40). Surely judicial notice includes violations of the Model Rules of Professional Conduct. The PDF Properties as described can be judicially noticed by looking at the documents through PACER vs. the record transmitted from the US District Court – you cannot create a PDF on the 20th and call it filed on the 19th as the docket and memorandum indicate (see Dkt. #53). The Docket can be judicially noticed where no notice of appearance will be found and where this case was purposefully set up as an immigration/ social security case. This Appellant was admonished in court documents because she requested a stay on submitting her discovery after notifying the court through email and Skype that she was thoroughly exhausted having had to deal with the fact that her son was acutely ill with an undetermined
Case: 11-1668
Document: 00116291660
Page: 5
Date Filed: 11/16/2011
Entry ID: 5595972
cause and hospitalized which required her to be in conference much of the recent days and nights with medical professionals and also believed she had a right to stay discovery pending a ruling by the US District Judge regarding motions #69 and #70; however without US District Judge authority the motions were denied with docket text and terminated from the docket (See Dkt. # 88 attachment 7 & 8) as was the request for a stay. These Defendants’ then Moved for Contempt where they named the request for a stay as continuing egregious conduct. Bogus court documents were designed to reflect already egregious conduct by this Appellant who in the face of transparently void orders filed to assert her constitutional rights; they were trying to beat this Appellant down into a further state of exhaustion and when the discovery request was filed by the then ordered date most all request stated were stricken. This Plaintiff has diligently prosecuted her action over the obstacle of continuous fraud. They pulled their fraud scheme with the Extraordinary Writ knowing this Appellant was here in Massachusetts grieving the death of her father. There is no request for a rehearing regarding the Extraordinary Writ by this Appellant; there is simply a request that Extraordinary Writ actually go before a judge or a panel of judges as its ruling was achieved through fraud and the request is timely under FRCP 60. Surely the Defense only argues that rehearing should not occur because once in front of a panel validation that the Writ was never heard will occur. In regards to the Docketing Statement that this Appellant has signed under the pangs of perjury if Defendants find it in any way inaccurate, incomplete, or misleading, the clerk’s office must be informed in writing of any errors and any proposed additions or corrections; they cannot motion to have the court deny this Appellant’s verified docketing statement. They appear to object to the entire content of the statement where, again, they deny and object their own documentation which is quoted throughout the docketing statement. The fact that the Extraordinary Writ never passed before the eyes of a judge is
Case: 11-1668
Document: 00116291660
Page: 6
Date Filed: 11/16/2011
Entry ID: 5595972
validated by the fact that this court of appeals would have never ignored the attached Dkt. #61 with “ORDERS” by a Magistrate Judge when there was absolutely no consent to 28 U.S.C. 636(c) and then deny a disabled pro se in forma pauperis litigant her request to be heard before a US District Judge with a pending R & R that threatened complaint dismissal with prejudice. The Writ clearly stated this Appellant was 3,000 miles from her home and indicated that financial status would not allow a return trip; any such order would be abuse of discretion, a flagrant denial of due process and an insult to the judicial economy. We would not be before this court of appeals if the Writ had a legitimate ruling; the case would have gone before a US District Judge. This Plaintiff was well aware by the unreasonable decision that the Writ had fallen to usurpation. The June 13th docket entry discovered on September 21, 2011 simply validated what was already clear. No attorney makes an appearance in an already decided case; Childs’ filing of the June 28, 2011 notice of appearance would have been an unjustified cost to his clients and I received no notice of the filing. A PDF of the case docket was created on June 20th directly from the PACER site after I received an email from the case manager with the ruling attached and the June 13 docket text is not on the June 20, 2011 docket. I also looked at the docket the morning of June 20th and there was no June 13th docket text or panel assignment; I called the case manager the morning of June 20th after seeing no progression on the docket and asked if there was anyway to expedite the process. The ruling came by email within a few hours after that call.
Due process may require a district court to hold a hearing, and allow relevant discovery, on civil contempt sanctions where there are disputed issues of material fact. See Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005) (―Due process requires a district court to resolve relevant factual disputes — allowing discovery and holding an evidentiary hearing if necessary— in a civil contempt proceeding.‖); Ayres, 166 F.3d at 996; N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 589 (6th Cir. 1987).
Never were multiple requests for a hearing addressed by any documentation coming from the US District Court. The intent to deny access to the court and any due process is prevalent in every
Case: 11-1668
Document: 00116291660
Page: 7
Date Filed: 11/16/2011
Entry ID: 5595972
document that comes from the US District Court when read in relation to the filings made by this Plaintiff.
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.‖).
This court of appeals has no jurisdiction over the final ruling in this matter because as stated clearly in this Appellant’s docketing statement the orders of Dkt. #61 by the Magistrate Judge are void; again, there was not proper reference to the Magistrate regarding this Plaintiff’s Contempt Motion (Dkt. #58) or for that matter Defendants’ Contempt Motion (Dkt. # 71) per Magistrate Rules for The District of Massachusetts Rule 8. Further, even there were no void orders and the Magistrate Judge had legitimate jurisdiction the adoption (Dkt. #86) of the Magistrate’s R & R (Dkt. #80) is also void because there is absolutely no clear indication that a legitimate de novo review took place. Dkt. #86 indicates review only of the defendant's motion and related papers, the Magistrate's R & R and this Plaintiff's objection. Dkt. #86 reads: ["After review of the defendant's motion for contempt (dkt. no. 71) and related papers, the Report and Recommendation of the Magistrate Judge (dkt. no. 80), and the plaintiff's objection to the Report (dkt. no. 81), I approve and adopt the Report, which recommends that this action be dismissed with prejudice because of the plaintiff's persistence in ignoring lawful and reasonable orders and rules of this court."] Please take Judicial Notice of the Fact that it is a scanned Document and compare it to the other adoptions noted in the Docketing Statement where scanned adoptions have the hand signature of a US District Judge. Court record can have Judicial Notice.
In making this determination, the Fifth Circuit observed, ―[W]hen a district judge enters a judgment, defects in the order of referral are procedural matters that can be waived if not properly preserved‖ because ―the duty assigned to a magistrate judge is ‗subject to meaningful review‘ by a district judge.‖ Id. However, ―when a magistrate judge enters judgment ․, the lack of a proper designation by the district judge renders the magistrate judge without jurisdiction.‖ Id. at 257 n. 3.
Case: 11-1668
Document: 00116291660
Page: 8
Date Filed: 11/16/2011
Entry ID: 5595972
Matters referred to a magistrate judge under both sections 636(b)(1) and 636(b)(3) must be reviewed de novo by the district court when a party objects to a magistrate judge's findings. See Peretz v. United States, 501 U.S. 923, 939, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see also In re Griego, 64 F.3d 580, 584 n. 4 (10th Cir.1995) (―[D]e novo review is required in both 636(b)(1) and 636(b)(3) referrals.‖). Accordingly, it follows that, upon an objection to a magistrate judge's proposed findings and recommendations pursuant to section 3401(i), a district court must undertake de novo review. We have previously held that the presumption that the district court conducted a de novo review is overcome where: 1) the hearing transcript was not available to the district court; 2) the district court gave no indication that it had listened to the tape of the hearing; and 3) the district court did not state that it had reviewed the file and records, but had only indicated review of the findings and rulings and the defendant's objections. Benitez, 244 Fed.Appx. at 66; see Jones, 47 F.3d at 253. The Jones Court remanded the case because the hearing transcript was available at the time of the district court's review and the district court stated only that it had reviewed the magistrate judge's findings and recommendation and the objections thereto. 47 F.3d at 253. The Benitez Court stated, This case fall[s] squarely within Jones. The transcript was not available at the time of the district court's review, the district court did not state that it had listened to the tapes, and the district court did not state that it had reviewed the records or files. Under Jones, we cannot presume that the district court conducted the necessary review in light of these indications to the contrary. Federal courts considering Rule 60(b)(4) motions that assert a judgment is void because of a jurisdictional defect generally have reserved relief only for the exceptional case in which the court that rendered judgment lacked even an ―arguable basis‖ for jurisdiction. Nemaizer v. Baker, 793 F. 2d 58, 65 (CA2 1986); see, e.g. , Boch Oldsmobile, supra , at 661–662 (―[T]otal want of jurisdiction must be distinguished from an error in the exercise of jurisdiction, and … only rare instances of a clear usurpation of power will render a judgment void‖ (brackets and internal quotation marks omitted)).
But see
―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). Further- I am persuaded by the reasoning of the Sixth and Seventh Circuits holding that a magistrate judge is not authorized to issue an order imposing Rule 11 sanctions. I reach this conclusion because a Rule 11 motion for sanctions, though it arises in the context of an underlying action, is the functional equivalent of an independent claim. On this point, the Supreme Court has compared a motion for Rule 11 sanctions to a criminal contempt charge insofar as each is "a separate and independent proceeding at law that is not part of the original action." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990) (internal quotation marks omitted).
This appeal is not frivolous; the course of the action in the US District Court is beyond shameful. This is abuse of power against a Disabled American who had a right to bring her grievance before a court and the abuse of court process by the Defendants and their attorneys.
Case: 11-1668
Document: 00116291660
Page: 9
Date Filed: 11/16/2011
Entry ID: 5595972
The words of Justice Louis Brandeis however, offer another view: "Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928). TORRUELLA, Circuit Judge, concerning the denial of en banc review. Some cases are of "exceptional importance" Nos.09-1950 10-1766 09-1951 09-1952 Donahue v. United States Entered: October 6, 2011 Close because of the potential they have to affect the lives of millions of people. See, e.g., Igartúa, et al. v. United States, No. 09-2186, __F.3d __, 2011 WL 3340120, *2 (1st Cir. Aug. 4, 2011) (Torruella, J., dissenting). Other cases are of exceptional importance because of the light they cast on our public institutions. The latter, while not always directly affecting as broad a segment of the population, are nevertheless exceptionally important by virtue of what they demonstrate about the trust that we -- for better or worse -- place in those institutions. This is one of those cases. Yet barely a month since a divided vote in Igartúa denied 4 million United States citizens residing in Puerto Rico review of constitutional issues of exceptional importance, this court continues this noxious pattern and once again prevents consideration by the full court of questions of exceptional importance. By this action it allows the government's outrageous conduct to remain free of any consequence, and as in Igartúa, perpetrates a monstrous injustice on another, albeit smaller, but no less worthy, group of hapless citizens. Is it so unreasonable for citizens to rely on what their government was repeatedly asserting as the truth? Can the government be allowed to benefit from its own perfidious conduct in duping its own citizens with stonewalling and outright lies? Are citizens to be held to such a standard of cynicism in their dealings with government, especially with such hallowed agencies as the FBI? Taken individually, these concerns -- individual injustice, loss of public trust, and substantial legal error -might not by themselves justify en banc review. Taken together, I believe they do. Two hundred and thirty-five years after we rid ourselves of King George III and his despotic ascendancy over colonial America, we cling to a doctrine that was originally based on the Medieval notion that "the King can do no wrong." This maxim was blindly accepted into American law under the assumption that it was incorporated as part of the common law in existence when our Nation separated from England. See Owen v. City of Independence, Mo., 445 U.S. 622, 645 n.28 (1980). However, this assumption does not withstand historical scrutiny. See Edwin M. Borchard, Governmental Responsibility in Tort (pt. VI), 36 Yale L. J. 1, 1741 (1926). Furthermore, the present case is the quintessential example of the fact that at times the government can, and does, do wrong. The Donahue and Halloran cases are an unfortunate but vivid example that even in the United States, with all our legal and constitutional safeguards, the government can go rogue. Although it is my belief and hope that our system is normally self-corrective, there are times when the courts have a duty to intervene to keep our system within the bounds of decency. The moral of this outcome seems to be that crime does pay, at least for the government. This case cries for redress, either by the Supreme Court, or by a special bill of Congress. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) Theoretically, everybody in this land is subject to the law. But of what value is the theory if performances like those revealed by this record go unrebuked?
Goltra v. Weeks, 271 U.S. 536 (1926) The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States. "
Case: 11-1668
Document: 00116291660
Page: 10
Date Filed: 11/16/2011
Entry ID: 5595972
As a fitting climax to the highhanded measures pursued by the officer, special counsel for the United States appeared at our bar and gravely announced: "Where the executive power has pronounced its finding or judgment within its proper sphere of action, a judicial judgment is not necessary to the enforcement of the executive one, for the reason that all the compulsive power of the government is in the executive department, and may be exercised by it in execution of its own processes and judgment, just as it is exercised by it in the execution of judicial process and judgment."
It is easy enough for us to smile at such stuff, but, unfortunately, the evil effects are not dissipated by gentle gestures. There should be condemnation forceful enough to prevent repetition so long as men have eyes to read.
Relief Requested (1) Summary Disposition reversing and vacating void orders- immediate remand to newly Assigned US District Judge for processing of default Judgment (2) Deny Defendants request for Summary Disposition (3) In the interest of the public and a clear need for safe guards and change a Full Review of case NO. 10 CA 11343 GAO by District and Circuit Judges Respectfully submitted to the COURT, s/ Laura J. McGarry, Pro Se Laura J. McGarry, Pro Se 1717 Sheridan Road Apt. A- 50 Bremerton, WA 98310 413-214-1750 [email protected] November 16, 2011 Certificate of Service I, Laura J. McGarry, hereby certify that on November 16, 2011 I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that the following counsel of record with the United States Court of Appeals are registered as ECF Filers and that they will be served by the CM/ECF system: Guy Paul Tully & Brian M. Childs of Jackson Lewis, LLP.
Document: 00116291660
Page: 1
Date Filed: 11/16/2011
Entry ID: 5595972
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ) LAURA J. MCGARRY, ) ) Case No. 11-1668 11-2292 Plaintiff/Appellant/Petitioner ) v. ) ) REPLY TO: GERIATRIC FACILITIES ) DEFENDANT‘S/APPELLEE‘S/RESPONDENT‘S OF CAPE COD INC., ) RE: CONSOLIDATED OPPOSITION 11-1668 d/b/a Pleasant Bay Nursing & ) RE: OMNIBUS RESPONSE 11-2292 Rehabilitation Center, d/b/a ) THIS IS A MATTEROF PUBLIC INTEREST Pleasant Bay Nursing Center LP, ) REQUEST THAT THE ENTIRE RECORD d/b/a Pleasant Bay Health & ) UNDERGO REVIEW - IN THE Living Centers; ) INTEREST OF JUSTICE THAT CASE JOSHUA ZUCKERMAN; ) BE IMMEDIATELY REMANDED TO THE RENEE MIKITA; ) US DISTRICT COURT IN FRONT OF A ROXANNE WEBSTER ) NEWLY ASSIGNED US DISTRICT JUDGE ) TO PROCESS A DEFAULT JUDGMENT Defendants/Appellees/Respondents ) AS PER Dkt. # 88, #93 & #97 ______________________________ ) Appellees through their Defense Counsel present to this court of appeals an OMNIBUS RESPONSE to this Appellant’s recent motions in which they merely underscore the frivolity of their pleading. The response is a replay of unauthorized court documents and an attempt to emphasize validity of these bogus court documents by attaching them to their response. The attachments are already in the abbreviated record transmitted by the US District Court and are the only documents transmitted by the US District Court in the abbreviated record; this Appellant’s direct verbal request to the District Court that the entire case record be transmitted to this court of appeals has been ignored. The inaction regarding the aforementioned request is perceived to be a clear admission of court staff involvement; other dockets of this court that involve pro se litigants do have docket entries showing that the US District Court transmitted the entire case record. How exactly does a court of appeals determine the validity of this Appellant’s allegation that all the filings by the court and the unauthorized defense counsel are bogus if all
Case: 11-1668
Document: 00116291660
Page: 2
Date Filed: 11/16/2011
Entry ID: 5595972
the documents these unauthorized rulings were supposedly based on are not read? The Defendants are simply trying to spoil evidence and objecting to this Appellant’s motion that the entire record be transmitted as per a rule 11.0 of this court is ludicrous.
The Massachusetts Supreme Court has recognized that Massachusetts courts have remedies for spoliation of evidence, i.e., exclusion of testimony in the underlying action, dismissal, or judgment by default. See Gath v. M/A-Com, Inc., 440 Mass. 482, 499, 802 N.E.2d 521, 535 (Mass. 2003). Sanctions should be carefully tailored to remedy the precise unfairness occasioned by the spoliation. Id. at 426; see also, Keene v. Brigham & Women‘s Hosp., Inc., 786 N.E.2d 824, 833-34 (Mass. 2003). Sanctions may be imposed even if the spoliation of evidence occurred before the legal action was commenced, if a litigant knows or reasonably should know that the evidence might be relevant to a possible action. Stull v. Corrigan Racquetball Club, Inc., 2004 WL 505141 (Mass. Super. 2004).
Inaction regarding the aforementioned by the public servants serving in this court of appeals would be disservice to the public and clear abandonment of fiduciary duty to the tax payer; this court of appeals has the power to correct and ensure that the public servants serving in US District Court understand that intentional violation of constitutional rights will not be tolerated. The Docketing Statement quite adequately articulates the abuse of power by staff of the US District Court including, but not limited to, extortion by directing the US Marshal to stifle this Appellant with the threat of criminal charges through certified mail and this Appellant demands that the letter receive Judicial Notice (see Dkt. # 98 attachment). This court of appeals also has the power to halt intentional violations of constitutional rights and further misconduct by these attorneys. The courts belong to the people not the corrupt. The American tax payer is not the slave of corrupt public servants and having tax pool monies provide the pay check for corrupt public servants who do not perform honest duty and abuse power does in fact define the American tax payer as their slave. The Constitution of the United States.
Defendants have nothing to substantiate their request to this court of appeals just as they had no merit to the defense they never brought before the district court through unauthorized attorneys and pretense litigation. Defendants refer to this Appellant’s motion requesting that the docket be
Case: 11-1668
Document: 00116291660
Page: 3
Date Filed: 11/16/2011
Entry ID: 5595972
corrected to reflect the reality that this Plaintiff was not any time under the jurisdiction of the magistrate as an ongoing abuse of court process. Defendants move to deny this Appellant’s Docketing Statement and for Summary Disposition claiming there has been no substantive basis for the appeal stated. Clearly they plan to continue attorney misconduct and their litigation tactic of deliberate misrepresentation. Unethical attorneys, again, have this disabled litigant doing unnecessary legal work to combat another one of their frivolous filings as their fraud upon the court continues in which fraud upon the court defines the substantive basis for this appeal; a well supported substantive basis which is why these attorneys who falsely appeared in the US District Court continue their M.O. by ensuring the case record never passes before the eyes of a judge as they continue to attempt to interfere with due process and falsely claim the Defendants are entitled to Summary Disposition. It is interesting how in Case No. 11-2292 that new notices of appearances promptly followed this Appellants motion for judicial notice where, both, attorneys had absent any named Defendant on their first filed Notice of Appearances. Their intentional false appearance in the US District Court to facilitate pretense litigation is in fact indirect criminal contempt and I demand that the case record receive judicial notice. The only acceptable Summary Disposition that would not be a miscarriage of justice also falls under Local Rule 27.0. Although much more than obvious error occurred, fraud upon the court should, similarly, reverse. Local Rule 27.0(c) In case of obvious error the court may, similarly, reverse.
"[An] attorney who agrees to represent a client in a court proceeding assumes a responsibility to the court as well as to the client." V.H. v. J.P.H., supra, quoting Hammond v. T.J. Little & Co., 809 F. Supp. 156, 159 (D. Mass. 1992). Mass. R. Prof. C. 3.1, 426 Mass. 1381 (1998) (lawyer shall not file suit "or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous") or of the "attorney's oath" he took under G. L. c. 221, § 38, when admitted to the bar ("I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid or consent to the same").
Case: 11-1668
Document: 00116291660
Page: 4
Date Filed: 11/16/2011
Entry ID: 5595972
The Docketing Statement, considering the particularity required, described as briefly as possible the fraud scheme initiated and carried in the US District Court and the issues that would be raised on appeal; it clearly point to many exhibits, including public records, that meet standards of evidence and should receive judicial notice. These Defendants and their attorneys submitted false statements and a false record to the EEOC and have been violating this Appellants constitutional right to due process and equal protection under the law ever since. Case dismissal is requested by Defendants and their attorneys because the record shows they conspired to promote and carry multiple Title 18 violations. The fact that the Extraordinary Writ filed with this court also fell to usurpation continued to keep this litigation off a legitimate tract. The docketing statement described the bizarre and unjust orders of Dkt. # 53 and #57 and how they were achieved through usurpation by the pro se staff attorney in collusion with these unauthorized counsel; the unauthorized rulings are favorable to the defendants based on their frivolous motions and oppositions as pleadings by this Plaintiff based on evidence, rule and existing law went ignored (see documents 27, 28, 29, 30, 32, 33, 41, 42, 43, 45,46, 48, 51, 52 and then see documents 35-40). Surely judicial notice includes violations of the Model Rules of Professional Conduct. The PDF Properties as described can be judicially noticed by looking at the documents through PACER vs. the record transmitted from the US District Court – you cannot create a PDF on the 20th and call it filed on the 19th as the docket and memorandum indicate (see Dkt. #53). The Docket can be judicially noticed where no notice of appearance will be found and where this case was purposefully set up as an immigration/ social security case. This Appellant was admonished in court documents because she requested a stay on submitting her discovery after notifying the court through email and Skype that she was thoroughly exhausted having had to deal with the fact that her son was acutely ill with an undetermined
Case: 11-1668
Document: 00116291660
Page: 5
Date Filed: 11/16/2011
Entry ID: 5595972
cause and hospitalized which required her to be in conference much of the recent days and nights with medical professionals and also believed she had a right to stay discovery pending a ruling by the US District Judge regarding motions #69 and #70; however without US District Judge authority the motions were denied with docket text and terminated from the docket (See Dkt. # 88 attachment 7 & 8) as was the request for a stay. These Defendants’ then Moved for Contempt where they named the request for a stay as continuing egregious conduct. Bogus court documents were designed to reflect already egregious conduct by this Appellant who in the face of transparently void orders filed to assert her constitutional rights; they were trying to beat this Appellant down into a further state of exhaustion and when the discovery request was filed by the then ordered date most all request stated were stricken. This Plaintiff has diligently prosecuted her action over the obstacle of continuous fraud. They pulled their fraud scheme with the Extraordinary Writ knowing this Appellant was here in Massachusetts grieving the death of her father. There is no request for a rehearing regarding the Extraordinary Writ by this Appellant; there is simply a request that Extraordinary Writ actually go before a judge or a panel of judges as its ruling was achieved through fraud and the request is timely under FRCP 60. Surely the Defense only argues that rehearing should not occur because once in front of a panel validation that the Writ was never heard will occur. In regards to the Docketing Statement that this Appellant has signed under the pangs of perjury if Defendants find it in any way inaccurate, incomplete, or misleading, the clerk’s office must be informed in writing of any errors and any proposed additions or corrections; they cannot motion to have the court deny this Appellant’s verified docketing statement. They appear to object to the entire content of the statement where, again, they deny and object their own documentation which is quoted throughout the docketing statement. The fact that the Extraordinary Writ never passed before the eyes of a judge is
Case: 11-1668
Document: 00116291660
Page: 6
Date Filed: 11/16/2011
Entry ID: 5595972
validated by the fact that this court of appeals would have never ignored the attached Dkt. #61 with “ORDERS” by a Magistrate Judge when there was absolutely no consent to 28 U.S.C. 636(c) and then deny a disabled pro se in forma pauperis litigant her request to be heard before a US District Judge with a pending R & R that threatened complaint dismissal with prejudice. The Writ clearly stated this Appellant was 3,000 miles from her home and indicated that financial status would not allow a return trip; any such order would be abuse of discretion, a flagrant denial of due process and an insult to the judicial economy. We would not be before this court of appeals if the Writ had a legitimate ruling; the case would have gone before a US District Judge. This Plaintiff was well aware by the unreasonable decision that the Writ had fallen to usurpation. The June 13th docket entry discovered on September 21, 2011 simply validated what was already clear. No attorney makes an appearance in an already decided case; Childs’ filing of the June 28, 2011 notice of appearance would have been an unjustified cost to his clients and I received no notice of the filing. A PDF of the case docket was created on June 20th directly from the PACER site after I received an email from the case manager with the ruling attached and the June 13 docket text is not on the June 20, 2011 docket. I also looked at the docket the morning of June 20th and there was no June 13th docket text or panel assignment; I called the case manager the morning of June 20th after seeing no progression on the docket and asked if there was anyway to expedite the process. The ruling came by email within a few hours after that call.
Due process may require a district court to hold a hearing, and allow relevant discovery, on civil contempt sanctions where there are disputed issues of material fact. See Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005) (―Due process requires a district court to resolve relevant factual disputes — allowing discovery and holding an evidentiary hearing if necessary— in a civil contempt proceeding.‖); Ayres, 166 F.3d at 996; N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 589 (6th Cir. 1987).
Never were multiple requests for a hearing addressed by any documentation coming from the US District Court. The intent to deny access to the court and any due process is prevalent in every
Case: 11-1668
Document: 00116291660
Page: 7
Date Filed: 11/16/2011
Entry ID: 5595972
document that comes from the US District Court when read in relation to the filings made by this Plaintiff.
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.‖).
This court of appeals has no jurisdiction over the final ruling in this matter because as stated clearly in this Appellant’s docketing statement the orders of Dkt. #61 by the Magistrate Judge are void; again, there was not proper reference to the Magistrate regarding this Plaintiff’s Contempt Motion (Dkt. #58) or for that matter Defendants’ Contempt Motion (Dkt. # 71) per Magistrate Rules for The District of Massachusetts Rule 8. Further, even there were no void orders and the Magistrate Judge had legitimate jurisdiction the adoption (Dkt. #86) of the Magistrate’s R & R (Dkt. #80) is also void because there is absolutely no clear indication that a legitimate de novo review took place. Dkt. #86 indicates review only of the defendant's motion and related papers, the Magistrate's R & R and this Plaintiff's objection. Dkt. #86 reads: ["After review of the defendant's motion for contempt (dkt. no. 71) and related papers, the Report and Recommendation of the Magistrate Judge (dkt. no. 80), and the plaintiff's objection to the Report (dkt. no. 81), I approve and adopt the Report, which recommends that this action be dismissed with prejudice because of the plaintiff's persistence in ignoring lawful and reasonable orders and rules of this court."] Please take Judicial Notice of the Fact that it is a scanned Document and compare it to the other adoptions noted in the Docketing Statement where scanned adoptions have the hand signature of a US District Judge. Court record can have Judicial Notice.
In making this determination, the Fifth Circuit observed, ―[W]hen a district judge enters a judgment, defects in the order of referral are procedural matters that can be waived if not properly preserved‖ because ―the duty assigned to a magistrate judge is ‗subject to meaningful review‘ by a district judge.‖ Id. However, ―when a magistrate judge enters judgment ․, the lack of a proper designation by the district judge renders the magistrate judge without jurisdiction.‖ Id. at 257 n. 3.
Case: 11-1668
Document: 00116291660
Page: 8
Date Filed: 11/16/2011
Entry ID: 5595972
Matters referred to a magistrate judge under both sections 636(b)(1) and 636(b)(3) must be reviewed de novo by the district court when a party objects to a magistrate judge's findings. See Peretz v. United States, 501 U.S. 923, 939, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see also In re Griego, 64 F.3d 580, 584 n. 4 (10th Cir.1995) (―[D]e novo review is required in both 636(b)(1) and 636(b)(3) referrals.‖). Accordingly, it follows that, upon an objection to a magistrate judge's proposed findings and recommendations pursuant to section 3401(i), a district court must undertake de novo review. We have previously held that the presumption that the district court conducted a de novo review is overcome where: 1) the hearing transcript was not available to the district court; 2) the district court gave no indication that it had listened to the tape of the hearing; and 3) the district court did not state that it had reviewed the file and records, but had only indicated review of the findings and rulings and the defendant's objections. Benitez, 244 Fed.Appx. at 66; see Jones, 47 F.3d at 253. The Jones Court remanded the case because the hearing transcript was available at the time of the district court's review and the district court stated only that it had reviewed the magistrate judge's findings and recommendation and the objections thereto. 47 F.3d at 253. The Benitez Court stated, This case fall[s] squarely within Jones. The transcript was not available at the time of the district court's review, the district court did not state that it had listened to the tapes, and the district court did not state that it had reviewed the records or files. Under Jones, we cannot presume that the district court conducted the necessary review in light of these indications to the contrary. Federal courts considering Rule 60(b)(4) motions that assert a judgment is void because of a jurisdictional defect generally have reserved relief only for the exceptional case in which the court that rendered judgment lacked even an ―arguable basis‖ for jurisdiction. Nemaizer v. Baker, 793 F. 2d 58, 65 (CA2 1986); see, e.g. , Boch Oldsmobile, supra , at 661–662 (―[T]otal want of jurisdiction must be distinguished from an error in the exercise of jurisdiction, and … only rare instances of a clear usurpation of power will render a judgment void‖ (brackets and internal quotation marks omitted)).
But see
―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). Further- I am persuaded by the reasoning of the Sixth and Seventh Circuits holding that a magistrate judge is not authorized to issue an order imposing Rule 11 sanctions. I reach this conclusion because a Rule 11 motion for sanctions, though it arises in the context of an underlying action, is the functional equivalent of an independent claim. On this point, the Supreme Court has compared a motion for Rule 11 sanctions to a criminal contempt charge insofar as each is "a separate and independent proceeding at law that is not part of the original action." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990) (internal quotation marks omitted).
This appeal is not frivolous; the course of the action in the US District Court is beyond shameful. This is abuse of power against a Disabled American who had a right to bring her grievance before a court and the abuse of court process by the Defendants and their attorneys.
Case: 11-1668
Document: 00116291660
Page: 9
Date Filed: 11/16/2011
Entry ID: 5595972
The words of Justice Louis Brandeis however, offer another view: "Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928). TORRUELLA, Circuit Judge, concerning the denial of en banc review. Some cases are of "exceptional importance" Nos.09-1950 10-1766 09-1951 09-1952 Donahue v. United States Entered: October 6, 2011 Close because of the potential they have to affect the lives of millions of people. See, e.g., Igartúa, et al. v. United States, No. 09-2186, __F.3d __, 2011 WL 3340120, *2 (1st Cir. Aug. 4, 2011) (Torruella, J., dissenting). Other cases are of exceptional importance because of the light they cast on our public institutions. The latter, while not always directly affecting as broad a segment of the population, are nevertheless exceptionally important by virtue of what they demonstrate about the trust that we -- for better or worse -- place in those institutions. This is one of those cases. Yet barely a month since a divided vote in Igartúa denied 4 million United States citizens residing in Puerto Rico review of constitutional issues of exceptional importance, this court continues this noxious pattern and once again prevents consideration by the full court of questions of exceptional importance. By this action it allows the government's outrageous conduct to remain free of any consequence, and as in Igartúa, perpetrates a monstrous injustice on another, albeit smaller, but no less worthy, group of hapless citizens. Is it so unreasonable for citizens to rely on what their government was repeatedly asserting as the truth? Can the government be allowed to benefit from its own perfidious conduct in duping its own citizens with stonewalling and outright lies? Are citizens to be held to such a standard of cynicism in their dealings with government, especially with such hallowed agencies as the FBI? Taken individually, these concerns -- individual injustice, loss of public trust, and substantial legal error -might not by themselves justify en banc review. Taken together, I believe they do. Two hundred and thirty-five years after we rid ourselves of King George III and his despotic ascendancy over colonial America, we cling to a doctrine that was originally based on the Medieval notion that "the King can do no wrong." This maxim was blindly accepted into American law under the assumption that it was incorporated as part of the common law in existence when our Nation separated from England. See Owen v. City of Independence, Mo., 445 U.S. 622, 645 n.28 (1980). However, this assumption does not withstand historical scrutiny. See Edwin M. Borchard, Governmental Responsibility in Tort (pt. VI), 36 Yale L. J. 1, 1741 (1926). Furthermore, the present case is the quintessential example of the fact that at times the government can, and does, do wrong. The Donahue and Halloran cases are an unfortunate but vivid example that even in the United States, with all our legal and constitutional safeguards, the government can go rogue. Although it is my belief and hope that our system is normally self-corrective, there are times when the courts have a duty to intervene to keep our system within the bounds of decency. The moral of this outcome seems to be that crime does pay, at least for the government. This case cries for redress, either by the Supreme Court, or by a special bill of Congress. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) Theoretically, everybody in this land is subject to the law. But of what value is the theory if performances like those revealed by this record go unrebuked?
Goltra v. Weeks, 271 U.S. 536 (1926) The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States. "
Case: 11-1668
Document: 00116291660
Page: 10
Date Filed: 11/16/2011
Entry ID: 5595972
As a fitting climax to the highhanded measures pursued by the officer, special counsel for the United States appeared at our bar and gravely announced: "Where the executive power has pronounced its finding or judgment within its proper sphere of action, a judicial judgment is not necessary to the enforcement of the executive one, for the reason that all the compulsive power of the government is in the executive department, and may be exercised by it in execution of its own processes and judgment, just as it is exercised by it in the execution of judicial process and judgment."
It is easy enough for us to smile at such stuff, but, unfortunately, the evil effects are not dissipated by gentle gestures. There should be condemnation forceful enough to prevent repetition so long as men have eyes to read.
Relief Requested (1) Summary Disposition reversing and vacating void orders- immediate remand to newly Assigned US District Judge for processing of default Judgment (2) Deny Defendants request for Summary Disposition (3) In the interest of the public and a clear need for safe guards and change a Full Review of case NO. 10 CA 11343 GAO by District and Circuit Judges Respectfully submitted to the COURT, s/ Laura J. McGarry, Pro Se Laura J. McGarry, Pro Se 1717 Sheridan Road Apt. A- 50 Bremerton, WA 98310 413-214-1750 [email protected] November 16, 2011 Certificate of Service I, Laura J. McGarry, hereby certify that on November 16, 2011 I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that the following counsel of record with the United States Court of Appeals are registered as ECF Filers and that they will be served by the CM/ECF system: Guy Paul Tully & Brian M. Childs of Jackson Lewis, LLP.
