Lewis v. Newburgh Nissan Car Dealership

• Court: District Court, S.D. New York
• Decided: January 9, 2020
• Docket: 1:04-cv-00562
• Status: Unknown

Opinion

. a USDC SDNY DOCUMENT IN THE UNITED STATES DISTRICT COURT □□ FOR THE SOUTHERN DISTRICT OF NEW YORK —————— | DATE FILED:_1/9/2020 REGINA LEWIS Plaintiff, RULE 60 b (6) Vv. 04 Cv. 562 NEWBURGH NISSAN NORTH AMERICA This motion is DENIED. A Rule 60 motion n be brought "no more than a year after the Defendants, entry of the judgment" (Fed. R. Civ. P. 60(c) in this case, entry of judgment was in 2005 years before Plaintiff filed this motion in lat 2019. Plaintiff has previously been warned to file successive frivolous documents, and pe Plaintiff continues to do so, the Court may order sanctions and bar Plaintiff from filing documents in this case" (Dkt. No..106). Pla is further warned, per the most récent wee Mandate from the Second Circuit (Dkt. No. [E C [E | VW fe "Appellant has filed anumber of frivolous matters in this court .< . . Appellant is □□□□ NOV ¥8 2019 warned that the continued filing of duplica □□ vexatious, or clearly meritless appeals, mot I or other papers, will result in the □□□□□□□□□□ PRO SE OF FICE a sanction, which may require Appellant to obtain permission from this Court prior to f any further submissions in this Court.... Appellant is also reminded that, in July 201 the district court imposed a three-strikes o1 against her under 28 U.S.C. § 1915(g)."_ Thi Appellant's final warning. Upon the next frivolous filing, Appellant will be sanctionec The Clerk of Court is respectfully directed t close Dkt. No. 110. SO“ORDERED. □□□ Come : Dated: January 9, 2020: □ New York, New-York

an fen TE ts a Lorna G. Scion’ : 4 Oo Sea UNITED STATES DISTRICT JUDGE | eel st ED \\

CONSTITUTIONAL AND STATUTORY PROVISIIONS INVOLVED

28 U.S.C. § 1654

STATUTES AND RULES 28 U.S.C. § 1654 Federal Rules of Civil Procedures, Rule 17, 28 USGA Federal Rules of Civil Procedure 60 b (6)

STATEMENT O THE CASE

On July 19,2005 the District court abused its disctetion by making a merits determination and dismissing my complaint with prejudice and for fa : ing to conduct a sua sponte inquiry into my competency and whether it would be appropriate to appoint a guardian ad litem, see Lewis v. Newburgh Housing Authority 16-613 (S.D.N., Y 2017).

I file my Rule 60 (b) motion to vacate the judgment, (6) any other reason that justifies relief. Exceptional circumstances apply and newly- discovered evidence demonstrates that: (1), the newly discovered evidence is of facts that existed at the time of the dispositive proceeding; (2), I was justifiable ignorant of them despite due diligence, |(3), the evidence is admissible and of such importance that it probably would have changed the outcome, and (4), the evidence is not merely □ cumulative or impeaching. See U.S. v. International Broth. Of Teamsters, 247 F .3d 370 (2001). Dunlap v. Pan American Airwa 8, Inc, 672 F.2d 1044.

Rule 60(b) (4) of the federal rules of Civil procedure provides that a court can relieve a party from a final judgment if the judgment is void, and the appellate court has held that judgment is void when the court “acted in a manner inconsistent |with the due process of law.” Fustok _v. ContiCommodity Services, Inc. 873 F.2d 38.

Jobe . PRO SE RIG TS:

The practice of law is an occupation of common right." Sims v. Aherns, 271 SW 720 (1 925).

Brotherhood of Trainmen v. Virginia ex rel. Virg | State Bar, 377 U.S. 1; v. Wainwright 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425, Litigants can be assisted by ufiensed . laymen during judicial proceedings. | :

Conley v. Gibson, 355 U.S. 41 at 48 (1957), "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.

Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama 375 U.S. 449,"The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."

Elmore v. McCammon (1986) 640 F. Supp. 905, ".|. the right to file a lawsuit pro se is one of the most important rights under the constitution and al s." Federal Rules of Civil Procedures, Rule 17, 28 | CA “Next Friend” A next friend is a person who represents someone who is unable to tend to or her own interest.

Haines v. Kerner, 404 U.S. 5 19 (1972), "Allegations such as those asserted by petitioner, however unartfully pleaded, are sufficient"... "which we/hold to less stringent standards than formal pleadings drafted by lawyers." .

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959) Picking v. Pennsylvania R. Co., 15] Fed 2nd 240; Pucket vy. Cox, 456 2nd 233, Pro se pleadings are to be considered without regard to

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technicality; pro se litigants’ pleadings are not to be/held to the same high standards of perfection as lawyers.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1939), "Pleadings are intended to serve as a means of arriving at fair and just settlements of controvetsies between litigants. They should: not raise barriers which prevent the achievement of that | end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."

NAACP v. Button, 371 U.S. 415); United a kers of America v. Gibbs, 383 U.S.715; and Johnson v. Avery, 89 S. Ct. 747 (1969), Members groups who are competent non-lawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."

Picking v. Pennsylvania Railway, 151] F.2d. 240, Third Circuit Court of Appeals, the plaintiffs civil rights pleading was 150 pages and described)by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit/for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities.” Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA), It was held that a pro se complaint requires’ a less stringent reading than one drafted by a law er per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section). .

Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982), "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Cou ) and ultimately, disrespect for the law." □

Sherar v. Cullen, 481 F. 2d 946 (1973), "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."

Schware v. Board of Examiners, United State Reports 353 U.S. pages 238 239, "The practice of law cannot be licensed by any state/State."

Sims v. Aherns, 271 SW 720 (1925), "The practice of law is an occupation of common right."

CONSTITUTIO At RIGHTS . REASONS FOR GR RELIEF .

Boyd v, United, 116 U.S. 616 at 635 (1885), must e Bradley, "It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in . | . that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally costed A close and literal construction deprives them of half their efficacy, and leads to gradual depreciat en of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to 4 watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis."

Downs vy. Bidwell, 182 U.S. 244 (1901), "It will be . evil day for American Liberty if the theory of a government outside supreme law finds lodgment in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its| full authority to prevent all violations of the principles of the Constitution."

Gomillion v. Lightfoot, 364 U.S. 155 (1966), cited\|also in Smith v. Allwright, 321 U.S. 649.644 "Constitutional 'trights would be of little value if the could be indirectly denied."

Juliard v. Greeman, 110 U.S. 421 (1884), seo Justice Field, "There is no such thing as a power of inherent sovereignty in the governt ent of the United States... In this country, sovereignty resides in the people, and Congress can exercise power which they have not, by their Constitution, entrusted to it. All else is withheld.”

Mallowy v. Hogan, 378 U.S. 1, "All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable."

Miranda v. Arizona, 384 U.S. 426, 491; 86S. Ct. 1603, "Where rights secured by the Constitution are involved, there can be no 'rule making’ or legis] tion which would abrogate them."

Norton v. Shelby County, 118 U.S. 425 p. 442, "Aln unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; jit creates no office; it is in legal contemplation, as inoperative as though it had never been passed.’

Perez v. Brownell, 356 U.S. 44, 7; 8S. Ct, 568, 2 L.\Ed. 2d 603 (1958), "...in our country the people are sovereign, and the government cannot sever jits relationship to them by taking quay their citizenship." .

Sherar v. Cullen, 481 F. 2d 946 (1973), "There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights."

Simmons v. United States, 390 U.S. 377 (1968), "The claim and exercise of a Constitution right cannot be converted into a crime"... "a denial of th¢m would be a denial of due process of law”.

Warnock vy. Pecos County, Texas., 88 F3d 341 (5th Cir. 1996), Eleventh Amendment does not protect state officials from claims for prospective relief when it is alleged that state officials acted in violation of federal law.

CORRUPTION OF AUTHORITY:

"No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to | bey it." Butz v. Economou, 98 S. Ct. 2894 1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882 . Acts in excess of judicial authority constitutes misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process. *Cannon v. Commission on Judicial Qualifications, (1975) 14 Cal. 3d 678, 694

Society's commitment to institutional justice requires that judges be solicitous of the rights of persons who come before the court. *Geiler v. Commission on Judicial Qualifications 1.973) 10 270, 286

Acts in excess of judicial authority constitutes misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process. *Gonzalez v. Commission on Judicial Performance, (1983) 33 Cal. 3d 359, 371, 374.

"Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it/invites anarchy." Olmstad v. United States, (1928) 277 U.S. 438.

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CONCLU | ION

The motion for Rule 60 b (6) should be granted Peed se constitutional and statutory provisions are involved. The court has abused its discretion. The right to appear pro se in a civil case in federal court is defined by statute 28 U.S.C. § 1654. . "Where rights secured by the Constitution are involved, there can be no 'rule making’ or legislation _ which would abrogate them." Miranda v. Arizona, 384 U.S. 426, 491; 86_S. Ct. 1603 "An unconstitutional act is not law; it confers no rights; jit imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed."

"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 118 U.S. 425 p. 442." □

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