Proposed Order to Dismiss for Frivolity


Proposed Order to Dismiss for Frivolity

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

ORDER TO DISMISS FOR FRIVOLITY

The Court has before it in the above-entitled cause a motion by the Plaintiffs asking that the Court either grant their Motion for a Temporary Restraining Order, or dismiss this action as frivolous. [1]


[1 This cause was filed in forma pauperis. It is well established that a District Court may dismiss an in forma pauperis complaint as frivolous sua sponte. SEE, e.g., Anderson v. Coughlin, 700 F.2d 37; Redwood v. the District of Columbia, 679 F.2d 931 (1982); Holloway v. Gunnell, 685 F.2d 150; Montana v. Commissioner's Court, 659 F.2d 19, cert denied, 455 U.S. 1026; Woodall v. Foti, 648 F.2d 268.
This Circuit Court has "asked the district court to provide a clear statement of reasons when dismissing a (frivolous in forma pauperis) complaint. The statement serves two purposes: IT FACILITATES APPELLATE REVIEW by informing this court and the parties of the grounds on which the action was dismissed, and, 'more importantly, it ensures that the district court has carefully considered the complaint and the applicable law.' In re Pope, 679 F.2d 931, 934 (DC Cir.1982); (other cites omitted)." Sills v. Bureau of Prisons, 761 F.2d 792 (DC Cir. 1985), at 794, citing Brandon v. D.C. Parole Board, 734 F.2d 56 at 62; Redwood v. Council of D.C, 679 F.2d 931, 934 (1982), EMPHASIS ADDED.]

On December 22, 1994 three long-term demonstrators in Lafayette Park filed an Application for a Temporary Restraining Order. The Complaint alleged that agents of the Park Police had engaged in a pattern and practice of arbitrarily threatening, intimidating, and harassing individuals, and particularly individuals engaged in First Amendment exercise, in Lafayette Park, under color of various valid Park regulation. Additionally, Plaintiffs sought to restrain Defendants from assigning officers O'Neill, Keness and the unidentified officer X, who fired the bullet that killed Marcelino Corniel, to duty in Lafayette Park. Complaint, page 1.

In an Order filed on December 22nd, the Court explained that because "the Clerk of the Court has advised the Court that the Defendants as yet have not been served," the TRO hearing would be scheduled for January 6, 1995.[2]


[2 On December 28, 1994 Plaintiffs filed a Motion asking this Court to recuse itself. They argued that the issues involved, "use of deadly, organized force and the suppression of free expression in a 'quintessential public forum' (White House Vigil for ERA v. Clark, 746 .2d 1518, 1526-27, 177) are of broad concern to the citizens of every democratic nation on Earth," and further claimed "these are matters essential to the well-being of any rational society, as such they require a fair public hearing, and the provisions of Rule 65 require that the hearing be prompt." Motion, page 3.
Impatiently, plaintiffs claimed, "particularly in light of the procedural reason it has claimed, for this Court to set January 6, 1995 to hear a TRO application filed on December 22, 1994 seems to reveal an insensitivity to the purpose of a TRO, and trivialize the lofty responsibilities which justify the very existence of any honorable Court. " Id, page 2.
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THE COURT MAY INSERT ITS RATIONALIZATION HERE:
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Plaintiffs claimed "the U.S. Attorney was served, and the Clerk received a certificate of service." Id, page 3. At the hearing Kenneth Kahn testified that on December 22nd he delivered the papers filed in this case to the U.S. Attorney's Office at 555 4th Street. Mr. Kahn also testified that he made the delivery before the papers were accepted by the Court Clerk, and that he signed a certificate of service in the presence of the Court Clerk.
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THE COURT MAY INSERT ITS RATIONALIZATION HERE. (NOTE, The Court
may like to consider a rationalization that exonerates "the U.S. Attorney's
Office," -- which happens to be the address on the certificate of service -- for
its' apparent inability to get properly delivered papers to the correct cubical
within said Office, and, perhaps, explain the significance of the fact that a process server,
or messenger, might not be familiar with the nature of the papers he was only supposed
to be delivering. See, this Court's Order, January 9, 1994, page 1.):
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Plaintiffs also pointed out "the provisions of Title 18 USC Sec. 1915(c) unequivocally state, "The officers of the court shall issue and serve all process, and perform all duties in (in forma pauperis) cases...." Motion to Recuse, page 3.
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THE COURT MAY INSERT RATIONALIZATION HERE:
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At the hearing held by this Court on January 6, 1995, Plaintiffs served an Amended Complaint on AUSA Rider, personally, adding "nominal monetary damage" claims against Officers O'Neill and Keness. Amended Complaint page 10.

Plaintiffs apparently feel compelled [3] to characterize the Court's actions as reflecting "a studied disinterest in exposing itself to the facts of the case." They even go as far as to suggest that the Court is "trivializing" the "fact-finding" function of the judicial branch of government, and have the effrontery to imply that the "slipshod" manner in which this Court has administered their precious TRO application has cost them and others dearly in time, resources and police harassment, without producing any measurable result. In fact they have actually convinced themselves that it would be counterproductive, if not "inexcusably stupid" (given the "reasonable questions of prejudice" raised, they would have us believe, by their pleas for recusal), to proceed to a hearing on the Motion for Preliminary Injunction with a trial on the merits before this particular Court.


[3********************************************************
THE COURT MAY, OR MAY NOT, WISH TO SPECULATE AS TO THE
NATURE OF PLAINTIFFS' APPARENT COMPULSION HERE:
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Notwithstanding that Defendants had fifteen days to prepare for the TRO hearing, on January 6th Assistant U.S. Attorney Sally Rider informed the Court that the United States was still not prepared to put on any witnesses.

At the outset of the January 6th hearing William Thomas, who spoke on behalf of all Plaintiffs, stated that Plaintiffs were not challenging the validity of the regulations at issue, but only the manner in which they were being enforced.

The Court asked Thomas whether Plaintiffs wished to proffer testimony on the allegations of the Complaint. Mr. Thomas informed the Court that he had "five or six" witnesses in the courtroom prepared to testify about the factual allegations of the Complaint. He also wanted to call Ass. Sol. Robbins, who is responsible for advising the Park Police on the proper enforcement of the regulations. Complaint, page 2. Mr. Robbins was expected to testify on the administrative policy regarding criminal "camping" as apposed to Legal "sleeping" in the Park.

The Court refused to allow testimony from any of Plaintiffs' witnesses.

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THE COURT MAY RATIONALIZE IGNORING THE FACTS HERE: [4]
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[4 "The law of evidence presupposes that in judging the claims of the litigants, it is important to discern the true state of affairs underlying the dispute. It proceeds on the premise that the way to find the truth is to permit the parties to present to the court all the evidence that bears on the issue to be decided, Fed. R. Evil. sections 401-901 (b)." McCormick on Evidence, 3rd Edition (4th reprint, 1991), page 540. See also Fed. R. Evid. 611 (a); see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1068, 13 L.Ed.d 923 (1965); Fed. R. Evil. 406 (b), Alford v. United States, 282 U.S. at 692, 51 S.Ct. at 219.]

The Court heard various factual representations from AUSA Rider, who professed no personal knowledge of any incidents alleged in the complaint and offered not a single declaration or jot of evidence to support her assertions. Thomas asserted that Ms. Rider's testimony was "inaccurate," and the record shows AUSA Rider's testimony is at least inconsistent with the sworn declarations and other documentation contained in Plaintiffs' pleadings.

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THE COURT MAY RATIONALIZE CREDITING MS. RIDER'S TESTIMONY HERE:
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Beginning in March 1994, according to the uncontested facts in the complaint, Park Police Officer Stephen O'Neill began threatening and intimidating people exercising First Amendment rights, when he arrested William Thomas under color of the disorderly conduct regulation. Complaint, page 3, see also Declaration of William Thomas, paras 3-7.

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THE COURT MAY INSERT ITS RATIONALIZATION FOR
IGNORING THIS CLAIM HERE:
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The Complaint also alleged that on a number of occasions in November 1994 Officers O'Neill and Keness threatened, without probable cause, to arrest Thomas and confiscate one of two signs he was attending under color of the "structure" regulation. Complaint, pages 4 & 5.

It is uncontested that, on November 10, 1994 Thomas "wrote a letter to Defendant Richard Robbins with respect to the actions of Officers O'Neill and Keness. " Id, see also, Declaration of William Thomas, Exhibit 1.

It is also uncontested that, "Thomas received a return receipt (for certified mail) acknowledging delivery of the letter to Mr.Robbins' office, Mr. Robbins has yet to reply to the letter."

Id. see also, Complaint, Exhibit 1. Plaintiffs claim this isprima facie evidence that the officers involved are operating without proper supervision.

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THE COURT MAY RATIONALIZE DEFENDANT ROBBIN'S
SUPERVISORY INACTION HERE:
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Plaintiffs alleged that "on several occasions in late November Officer O'Neill, without probable cause, threatened to arrest Concepcion and confiscate ... two flags [5] from the White House Anti-Nuclear Vigil, under color of the "sign" regulation." Complaint, page 4.


[5 A U.S. District Court Order, dated October 12, 1990, directed the Park Police, Defendant Robbins and others, to return the same flags at issue here to Plaintiffs after they had been seized without probable cause. Declaration of William Thomas, Exhibit 2. By virtue of this Order, Plaintiffs claim, these Defendants had, or should have "had clear judicial notice regarding the 'First Amendment rights' involved." Complaint, page 4
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RATIONALIZE FRIVOLITY HERE:
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It is undisputed that, "in an attempt to placate Officer O'Neill, Concepcion applied for and obtained many (unnecessary[6]) permits which allowed her to have '2 signs and 2 flags.'" Id., see also, Declaration of William Thomas, Exhibit 1.


[6 Plaintiffs are exempted from permit restrictions pursuant to 36 CFR 7.96 (vii)(E), "the Small Group Permit Exemption." Complaint, page 4.]

Plaintiffs also claim that despite their "valid Park Service permits, on separate occasions during November and December, first Officer O'Neill, then Officer Keness, each repeatedly threatened to arrest Concepcion and confiscate her flags unless she removed them from the demonstration."

Then, Plaintiffs claim, on or about December 17th, after Thomas replaced the flags which Officers O'Neill and Keness had, only an hour or so earlier, intimidated Concepcion into removing by threatening her with arrest, Officer Keness threatened Thomas with arrest and confiscation of the flags unless the flags were again removed from the demonstration

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THE COURT MAY INSERT A RATIONALIZATION EXPLAINING WHY THIS
CAN'T POSSIBLY BE CONSTRUED AS A PATTERN AND PRACTICE
AIMED AT DISRUPTING OR CHILLING
FIRST AMENDMENT PROTECTED ACTIVITY HERE:
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Thomas explained to Officer Keness why he believed Officer's animus to be the suppression of free expression. Complaint, page 5, see also, Declaration of William Thomas.

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THE COURT MAY RATIONALIZE HOW SOVEREIGN IMMUNITY
SANITIZES ANY INSANE ANIMUS OFFICER KENESS
MAY HAVE ENTERTAINED HERE:
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On December 19, 1994, Plaintiffs claim, Defendants focus of continued harassment shifted slightly, when Officers O'Neill and Keness, in concert with other Park Police officers, threatened to charge Concepcion with a CFR violation unless she removed a small plastic cooler which has been at her demonstration site every day for several years. Complaint, id.

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THE COURT MAY INSERT A RATIONALIZATION OF SIMPLE FRIVOLITY HERE:
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No one disputes that on December 20, 1994 Marcelino Corniel was shot to death by Park Police officers on the White House sidewalk, when Marcelino chased Officer O'Neill down the sidewalk with a knife, shortly after Officer O'Neill, purportedly enforcing a "camping" regulation, assaulted Marcelino by kicking and prodding him with a nightstick. Complaint, page 6, also Declaration of Wade Varner.
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THE COURT MAY EXPLAIN WHY IT BELIEVES THAT THESE OFFICERS CAN BE RELIED ON NOT TO COLLABORATE TO KILL AGAIN, EITHER INTENTIONALLY, ACCIDENTLY, AND/OR DURING AN UNDERSUPERVISED OVERREACTION, HERE:
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In the interests of honesty it should be noted that plaintiffs did EMPHASIZE they were not challenging the validity of the "camping regulation," rather Plaintiffs have been as explicit as pro se Plaintiffs (see, generally, Sills v. Bureau of Prisons, id) may be expected in alleging that they are not challenging Officer O'Neill's duty to enforce the "camping" regulation. Instead Plaintiffs assume the position that, assuming Marcelino was "camping," Officer O'Neill had only three legitimate options (warning him, issuing a citation, or arresting Marcelino), and that when Officer O'Neill kicked Marcelino and jabbed Marcelino with a nightstick, Officer O'Neill exceeded his official authority and committed the criminal act of assault. Complaint, para. 20.

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THE COURT MAY RATIONALIZE THIS CLAIM HERE:
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A Temporary Restraining Order, as the name might suggest, is temporary relief which may be granted by courts to protect interests which are vital to society as a whole. A TRO lasts only ten days. F.R.C.P. 65. This Court didn't hold any hearing on the TRO until fifteen days after the Application was filed.

As the court explained in its Order of January 4, 1995, the purpose of postponing the TRO hearing for such an unprecedented length of time [7] was to provide Defendants enough time to prepare for a hearing.


[7 Plaintiffs believe this case breaks new ground in a couple of areas. First, they don't know of any TRO hearing in history where the government filed a written Opposition to a TRO Motion prior to the TRO hearing. Second, they believe it is even less likely that a Motion for Recusal, an Opposition to the Motion for Recusal, a Response to the Opposition, and a hearing on the Motion to Recuse, all arising from a routine TRO application, ever before PRECEDED the TRO hearing itself. ]

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THE COURT MAY WISH TO INSERT A RATIONALIZATION EXPLAINING HOW
THE COURT'S REFUSAL TO RECUSE ITSELF FOR FAILING TO
HOLD A TIMELY TRO HEARING "BECAUSE OF THE HOLIDAY SEASON"
(Order, January 4, 1995, page 2) HERE:
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Plaintiffs insisted, pursuant to the provisions of 16 USC 1415(c), that the Court Order the U.S. Marshal's Service to prepare and make service of process on all Defendants. Plaintiffs went so far as to imply this Court was incompetent for failing to have Ordered the Marshall's Service make service to on December 22nd. See, footnote 2, above. AUSA Rider offered token objection; however, the Court did Order the U.S. Marshal's Service to serve process upon all Defendants. See, Court's Order, January 9, 1995, page 4, compare, Plaintiffs' Motion to Recuse, filed December 27, 1995, pages 3, 4.

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IN LIGHT OF THE PREVIOUS RATIONALIZATION, THE COURT MAY
INSERT ITS RATIONALIZATION FOR ORDERING THE U.S. MARSHAL'S SERVICE
TO SERVE PROCESS FOR A "FRIVOLOUS" COMPLAINT HERE:
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While plaintiffs have not defined their position with absolute clarity, it seems they contend that by refusing to hear their witnesses, choosing instead to accept the contested testimony of AUSA Rider, the Court has "trivializ(ed) the 'fact-finding' function of the judicial branch of government." See, Plaintiffs' Motion to Dismiss as Frivolous. Apparently Plaintiffs think "the odds of getting this Court to consider our factual allegations objectively are considerably less than the odds facing Daniel Webster in his attempt to prevail against the Devil (The Devil and Daniel Webster, Mark Twain)."

Unlikely as it may seem at this point in the litigation it begins to appear as though Plaintiffs have actually convinced themselves "that the interests of Truth and Justice would be better served by bringing this action to the Circuit Court for review of the district court's learned opinions, than by allowing this Court an opportunity to pretend to conduct an impartial factual hearing."

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THE COURT MAY INSERT SUCH ADDITIONAL RATIONALIZATIONS
AS IT DEEMS PROPER HERE:
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Accordingly, on this _____ day of January, 1995, it is,
ORDERED, Plaintiffs' complaint in the above entitled action, be and hereby is, DISMISSED AS FRIVOLOUS, WITH WITHOUT (select only one) PREJUDICE

.



_________________________________
CHARLES R. RICHEY
United States District Court Judge