Diarra v. New York City

S.D. New York

Diarra v. New York City

DecidedSeptember 29, 2022

Docket1:16-cv-07075

StatusUnknown

This text of Diarra v. New York City (Diarra v. New York City) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Diarra v. New York City, (S.D.N.Y. 2022).

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APPLICATION DENIED, SO ORDERED ‘Jo "IAA > ||The Law Offices of Kissinger N. Siband. VERNON S. BRODERICK. ; Box 714 U.S.D.J. 09/29/2022 , || Livingston, NJ 07039 Consistent with my February 11, 2020 Lo. . Order, (Doc. 255), Plaintiff originally 5 Kissinger N. Sibanda, DC Bar #1017426 filed the documents on the docket and, Telephone 973-689-5952 as stated in his letter, possesses copies 6 i]: ksi @ ple. of the documents that were eventually 7 Email: kstbandatemple.edu filed under seal. Therefore, Plaintiff has permission to use any copies of the 8 April 9th, 2021 documents in his possession solely in 9 connection with the National Action Network investigation. 10 United States District Court b Southern District of New York 13 14 MOUSSA DIARRA, ) Civil No. 1:16-civ-07075(VSB) ) (OTW)(closed) 16 || Plaintiff, ) 17 ) V. ) LETTER MOTION: ) 19 || CITY OF NEW YORK, ) REQUEST TO SHARE ) COPIES OF SEALED Defendant. ) DOCUMENTS, WITH ) NATIONAL ACTION 22 ) NETWORK FIELD 33 ) DIRECTOR DEREK ) PERKINS, IN PERSON. 24 ) 25 ) (Unoppossed) 26 ) 27 28 fp DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB) (CLOSED)

1 2 Background: 3 On March 26th, 2021, the field coordinator Derek Perkins sent me 4 an email requesting to see copies of the sealed photos of the victim in 5 6 the matter 1-16-cv- 07075 (VSB). See, Exhibit - A: email request. The 7 case, 1-16-cv-07075 (VSB)(OTW), its decision, subsequent appeals and 8 9 the way it was handled is now subject of an investigation by the Second 10 Circuit judicial committee, as well as being subject to a pending Second 11 12 Notice of Claim, alleging 1-16-cv-07075 (VSB)(OTW) was determined by 13 favouritism and corruption. See, Exhibit - B – Notice of claim. 14 15 16 National Action Network is a well established organization which 17 18 deals with Civil rights advocacy. Headed by the Rev. Al Sharpton, NAN 19 is accredited and accepted by most objective people as a bonafide civil 20 21 rights organization in the country, with a historic record of successfully 22 advocating for people’s constitutional rights1. Contemporaneous with 23 24 this motion is a request to submit a letter motion which exceeds three 25 pages. 26 27 28 1 See, Abner Louimar, Mamadou Diallo, Sean Bell and Eleanor Bumpers matters. DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 Need: 2 The need to see evidence before advocating on a matter, for any 3 4 civil rights organization, is a relevant and legitimate step for any 5 reputable civil rights organization, here NAN2. See, argument infra. 6 7 This letter motion having reached out to New York Law 8 department on April 1st, 2021 to see if it was opposed is unopposed. 9 10 This motion is not to unseal but to share with Derek Perkins, the 11 National Action Network field director a copy of photos which were 12 13 central to Mr. Diarra’s false arrest for “circumcision of genitalia.” 14 15 Argument: 16 17 (1) Mr. Diarra has a right to evidence held in Chambers 18 under Equal Protection Law: 19 Pursuant to the Fourteenth Amendment’s Equal Protection clause 20 , stating that: 21 …No state shall make or enforce any law which shall abridge the 22 privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process 23 of law; nor deny to any person within its jurisdiction the equal 24 protection of the laws. 25 26 27 28 2 NAN doe snot have a second DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 Mr. Diarra has a right to obtain and adduce evidence in 2 proceedings to which he is a party as an extension of his right to equal 3 4 protection. Here, NAN wishes to advocate for Mr. Diarra, this is a valid 5 public and advocacy reason. Any evidence that has a tendency to 6 7 properly help in asserting his equal protection should be released for 8 this purposes only. See generally, Jencks v. United States, 353 U.S. 657 9 10 (1957); Giglio v. United States, 405 U.S. 150 (1972); and Brady v. 11 Maryland, 373 U.S. 83 (1963). 12 13 Here, Mr. Diarra is requesting to share copies of the photos with a 14 reputable Civil Rights Organization (NAN) before NAN engages in 15 16 public advocacy on his behalf. Mr. Diarra has a right to this exculpatory 17 evidence for purposes and the nature of this advocacy. Id. 18 19 The photos of the victim are exculpatory and show that Mr. 20 Diarra, arrested for “cutting clitoris” was falsely arrested as that never 21 22 happened per photos. As such they fall within the broader holding of 23 Brady; that a person has a right to exculpatory evidence held by others. 24 25 (2) Mr. Diarra Has a Substantive right (right to liberty) 26 in These Proceedings Under Substantive Law: 27 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 Furthermore, pursuant to United States v. Carolene Products 2 Company, 304 U.S. 144 (1938) (see footnote 4); stating the limits and 3 4 process for substantive due process. The taking of the right3 to present 5 evidence, should comply with Carolene. The legal reasons for refusal of 6 7 evidence from a branch of government, here Chambers, to give evidence 8 pertinent for Mr. Diarra’s advocacy should be clearly stated as to the 9 10 necessity of that denial, given that these photos are relevant to a 11 rebuttal of a false arrest for “genital mutilation” in the public space by 12 13 NAN. 14 Relevancy of sealed photos4: 15 Photos of Mrs. Diarra were previously sealed by this office. See, 16 17 sealing order - Exhibit C: sealing order. 18 The photos are relevant under FRE 401 because they show that no 19 20 rape kit was ever made at the time of the actual arrest / incident – no 21 photos of Mrs. Diarra were taken before the arrest - instead photos 22 23 3 Mr. Diarra’s right to present evidence in his false arrest to NAN. 24 4 The affirmation of the District Court’s order by the Second Circuit is not 25 binding precedent and has little or no jurisprudential value, depending on the District judge’s interpretation - rendering the District Court’s order in 26 the first Diarra matter non-binding precedent. By its nature, this order is subject to a weaker standard of reversal should the summary order come under 27 review by a different panel of the Second Circuit or a different District judge. 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 showing, Mrs. Diarra’s healthy genitalia were then taken four-five 2 months later. However, Mr. Diarra was arrested for genital cutting. 3 4 This fact is necessary for the advocacy work of Al Sharpton’s Action 5 Network, who deal in facts not innuendo. 6 7 If this request is ignored, Mr. Diarra will be proceeding, 8 accordingly, with a writ of mandamus. However, should this motion be 9 10 granted, then defendant counsel will organise a meeting with Mr. Derek 11 Perkins to show him a copy of photos, in person or via zoom. All copies 12 13 will remain with defendant counsel as per sealing order and no codes 14 will be duplicated for NAN. 15 16 DATED: LIVINGSTON, NEW JERSEY 17 April 9th, 2021 18 19 20 Respectfully Submitted, 21 22 /s/ Kissinger N. Sibanda 23 KISSINGER N. SIBANDA, ESQ., 24 Attorney for the Plaintiff 25 P.O Box 714 26 Livingston, NJ 07039 Telephone: (973) 689-5952 27 Email: ksibanda@temple.edu 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 2 3 To: BY ECF 4 Honorable Vernon S. Broderick 5 United States District Court 6 Southern District of New York 7 40 Foley Square, 8 Room 415 New York, NY 10007 9 10 VIA ECF 11 Cooperation Counsel - James Johnson 12 New York Law Department 13 Valerie E. Smith Esq (Assigned) 14 Attorney for Defendant 15 100 Church St.

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APPLICATION DENIED, SO ORDERED ‘Jo "IAA > ||The Law Offices of Kissinger N. Siband. VERNON S. BRODERICK. ; Box 714 U.S.D.J. 09/29/2022 , || Livingston, NJ 07039 Consistent with my February 11, 2020 Lo. . Order, (Doc. 255), Plaintiff originally 5 Kissinger N. Sibanda, DC Bar #1017426 filed the documents on the docket and, Telephone 973-689-5952 as stated in his letter, possesses copies 6 i]: ksi @ ple. of the documents that were eventually 7 Email: kstbandatemple.edu filed under seal. Therefore, Plaintiff has permission to use any copies of the 8 April 9th, 2021 documents in his possession solely in 9 connection with the National Action Network investigation. 10 United States District Court b Southern District of New York 13 14 MOUSSA DIARRA, ) Civil No. 1:16-civ-07075(VSB) ) (OTW)(closed) 16 || Plaintiff, ) 17 ) V. ) LETTER MOTION: ) 19 || CITY OF NEW YORK, ) REQUEST TO SHARE ) COPIES OF SEALED Defendant. ) DOCUMENTS, WITH ) NATIONAL ACTION 22 ) NETWORK FIELD 33 ) DIRECTOR DEREK ) PERKINS, IN PERSON. 24 ) 25 ) (Unoppossed) 26 ) 27 28 fp DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB) (CLOSED)

1 2 Background: 3 On March 26th, 2021, the field coordinator Derek Perkins sent me 4 an email requesting to see copies of the sealed photos of the victim in 5 6 the matter 1-16-cv- 07075 (VSB). See, Exhibit - A: email request. The 7 case, 1-16-cv-07075 (VSB)(OTW), its decision, subsequent appeals and 8 9 the way it was handled is now subject of an investigation by the Second 10 Circuit judicial committee, as well as being subject to a pending Second 11 12 Notice of Claim, alleging 1-16-cv-07075 (VSB)(OTW) was determined by 13 favouritism and corruption. See, Exhibit - B – Notice of claim. 14 15 16 National Action Network is a well established organization which 17 18 deals with Civil rights advocacy. Headed by the Rev. Al Sharpton, NAN 19 is accredited and accepted by most objective people as a bonafide civil 20 21 rights organization in the country, with a historic record of successfully 22 advocating for people’s constitutional rights1. Contemporaneous with 23 24 this motion is a request to submit a letter motion which exceeds three 25 pages. 26 27 28 1 See, Abner Louimar, Mamadou Diallo, Sean Bell and Eleanor Bumpers matters. DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 Need: 2 The need to see evidence before advocating on a matter, for any 3 4 civil rights organization, is a relevant and legitimate step for any 5 reputable civil rights organization, here NAN2. See, argument infra. 6 7 This letter motion having reached out to New York Law 8 department on April 1st, 2021 to see if it was opposed is unopposed. 9 10 This motion is not to unseal but to share with Derek Perkins, the 11 National Action Network field director a copy of photos which were 12 13 central to Mr. Diarra’s false arrest for “circumcision of genitalia.” 14 15 Argument: 16 17 (1) Mr. Diarra has a right to evidence held in Chambers 18 under Equal Protection Law: 19 Pursuant to the Fourteenth Amendment’s Equal Protection clause 20 , stating that: 21 …No state shall make or enforce any law which shall abridge the 22 privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process 23 of law; nor deny to any person within its jurisdiction the equal 24 protection of the laws. 25 26 27 28 2 NAN doe snot have a second DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 Mr. Diarra has a right to obtain and adduce evidence in 2 proceedings to which he is a party as an extension of his right to equal 3 4 protection. Here, NAN wishes to advocate for Mr. Diarra, this is a valid 5 public and advocacy reason. Any evidence that has a tendency to 6 7 properly help in asserting his equal protection should be released for 8 this purposes only. See generally, Jencks v. United States, 353 U.S. 657 9 10 (1957); Giglio v. United States, 405 U.S. 150 (1972); and Brady v. 11 Maryland, 373 U.S. 83 (1963). 12 13 Here, Mr. Diarra is requesting to share copies of the photos with a 14 reputable Civil Rights Organization (NAN) before NAN engages in 15 16 public advocacy on his behalf. Mr. Diarra has a right to this exculpatory 17 evidence for purposes and the nature of this advocacy. Id. 18 19 The photos of the victim are exculpatory and show that Mr. 20 Diarra, arrested for “cutting clitoris” was falsely arrested as that never 21 22 happened per photos. As such they fall within the broader holding of 23 Brady; that a person has a right to exculpatory evidence held by others. 24 25 (2) Mr. Diarra Has a Substantive right (right to liberty) 26 in These Proceedings Under Substantive Law: 27 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 Furthermore, pursuant to United States v. Carolene Products 2 Company, 304 U.S. 144 (1938) (see footnote 4); stating the limits and 3 4 process for substantive due process. The taking of the right3 to present 5 evidence, should comply with Carolene. The legal reasons for refusal of 6 7 evidence from a branch of government, here Chambers, to give evidence 8 pertinent for Mr. Diarra’s advocacy should be clearly stated as to the 9 10 necessity of that denial, given that these photos are relevant to a 11 rebuttal of a false arrest for “genital mutilation” in the public space by 12 13 NAN. 14 Relevancy of sealed photos4: 15 Photos of Mrs. Diarra were previously sealed by this office. See, 16 17 sealing order - Exhibit C: sealing order. 18 The photos are relevant under FRE 401 because they show that no 19 20 rape kit was ever made at the time of the actual arrest / incident – no 21 photos of Mrs. Diarra were taken before the arrest - instead photos 22 23 3 Mr. Diarra’s right to present evidence in his false arrest to NAN. 24 4 The affirmation of the District Court’s order by the Second Circuit is not 25 binding precedent and has little or no jurisprudential value, depending on the District judge’s interpretation - rendering the District Court’s order in 26 the first Diarra matter non-binding precedent. By its nature, this order is subject to a weaker standard of reversal should the summary order come under 27 review by a different panel of the Second Circuit or a different District judge. 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 showing, Mrs. Diarra’s healthy genitalia were then taken four-five 2 months later. However, Mr. Diarra was arrested for genital cutting. 3 4 This fact is necessary for the advocacy work of Al Sharpton’s Action 5 Network, who deal in facts not innuendo. 6 7 If this request is ignored, Mr. Diarra will be proceeding, 8 accordingly, with a writ of mandamus. However, should this motion be 9 10 granted, then defendant counsel will organise a meeting with Mr. Derek 11 Perkins to show him a copy of photos, in person or via zoom. All copies 12 13 will remain with defendant counsel as per sealing order and no codes 14 will be duplicated for NAN. 15 16 DATED: LIVINGSTON, NEW JERSEY 17 April 9th, 2021 18 19 20 Respectfully Submitted, 21 22 /s/ Kissinger N. Sibanda 23 KISSINGER N. SIBANDA, ESQ., 24 Attorney for the Plaintiff 25 P.O Box 714 26 Livingston, NJ 07039 Telephone: (973) 689-5952 27 Email: ksibanda@temple.edu 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 2 3 To: BY ECF 4 Honorable Vernon S. Broderick 5 United States District Court 6 Southern District of New York 7 40 Foley Square, 8 Room 415 New York, NY 10007 9 10 VIA ECF 11 Cooperation Counsel - James Johnson 12 New York Law Department 13 Valerie E. Smith Esq (Assigned) 14 Attorney for Defendant 15 100 Church St. 16 New York, NY 10007 17 18 19 CC: COLLEN McMAHON 20 21 United States District Court 22 Southern District of New York 23 40 Foley Square, 24 Room 415 New York, NY 10007 25 26 Chief judge SDNY. 27 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED) 1 2 3 CERTIFICATE OF SERVICE: 4 5 This is to certify that on April 9th, 2021, the defendant served opposing 6 counsel, via ECF, a copy of this letter motion, which is unopposed per 7 their response dated April 2nd, 2021. 8 9 10 11 12 13 Cordially, 14 /s/Kissinger N. Sibanda 15 Kissinger N. Sibanda 16 Attorney for defendant 17 18 19 20 21 22 23 24 25 26 27 28 DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)

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