D | CROOKED COURT | PLAINTIFF'S OBJECTIONS TO MAGISTRATE'S REPORT & RECOMMENDATION

INTRODUCTION
I.     Background

A. Preceding Federal Action (Makere v Early)

1. On-or-around January 31, 2021, Plaintiff sued Edward Gary Early (a state hearing officer) for constitutional deprivations (4:21-cv-00096; USFLND) (“That Case”). The action was brought under federal law. It – like the underlying lawsuit which Mr. Early impeded^1/ – continues to this day; albeit hampered by unconstitutional conduct of the above-charged public officials.

B. Immediate Federal Action (Makere v Fitzpatrick, et al)

2. On-or-around April 26, 2022, Plaintiff sued the above-captioned Defendants for constitutional violations. Therein, Plaintiff levied one Bivens count against each of the following six defendants (hereinafter “Defendants Fitzpatrick/etc”): Defendant Fitzpatrick (1); Defendant Walker (1); Defendant USFLND (1); Defendant Frank (1); Defendant Winsor (1); and Defendant Cannon (1). Plaintiff also filed two counts against Defendant Schreiber (2); doing so under 42 USC §1983 (‘Ku Klux Klan Act of 1871’) and 42 USC §1985.

a. Importantly, Plaintiff initiated this action in state court (Florida; Duval County; 2022-CA-2333).^1/

b. Notably, the final three federal defendants were added via complaint amendment.

c. Lastly, all defendants – save for Defendant USFLND – were sued in both their individual capacities as well as their official capacities.^2/

3. On August 10, 2022, Defendant Schreiber filed his Motion to Dismiss. Sixteen days later, Defendants Fitzpatrick/etc filed theirs.

a. In between those two dates, Plaintiff filed a partially unopposed motion for leave to utilize electronic filing (“eFiling Motion”).

4. On-or-around August 29, 2022, USFLMD transferred this case into this Court. A transfer that arrived at about the same time Plaintiff’s two responses arrived (¶3a supra).

5. Roughly two months later – on November 8, 2022 – this Court’s magistrate entered That Order.

a. A document that did not land in Plaintiff’s mailbox until November 16, 2022.
b. A document that also denied Plaintiff’s eFiling Motion [C020].

C. Ultimate Facts

6. Defendants Fitzpatrick/etc entered into a pre-suit pact to deprive Plaintiff of Plaintiff’s constitutional rights [C088]. Their plan was pockmarked by invidious discrimination on the bases of race & sex. Plus, they were motivated by unlawful contributions.

7. Among other things, Defendants Fitzpatrick/etc committed the following acts:

a. lying [C058] [C082];
b. ratifying lies [C062];
c. altering the federal docket [C058d];
d. entering orders without authority [C058] [C062];
e. shunning their duties to disqualify themselves [C058];
f. drafting unconstitutional local rules [C058] [C062] [C078]; and
g. enforcing unconstitutional local rules [C058] [C062] [C078]

8. Doing so, importantly, “under the guise of federal authority” in order to “deprive Plaintiff of Plaintiff’s constitutional rights”. [C107]-[C108] [C117]-[C118] [C122] [C125]-[C126] [C129]-[C130] [C133]-[C134].

9. As such, Plaintiff sought nominal, compensatory, punitive, injunctive, and declaratory relief against Defendants Fitzpatrick/etc [C145][C147-152]. Declaratory relief, importantly, that was aimed at ‘Declaring that’ Defendants Fitzpatrick/etc violated Plaintiff’s constitutional rights (under Bivens and 28 USC §1343) in the Makere v Early case^5/. Injunctive relief, importantly, that was aimed at “Enjoining” Defendants Fitzpatrick/etc from committing further constitutional violations (under Bivens and 28 USC §1343). An injunction that was also geared towards “enjoining” Defendants Fitzpatrick/etc “from ever participating” in “a case involving Plaintiff”.

10. Similarly, Defendant Schreiber entered into a pre-suit pact to deprive Plaintiff of Plaintiff’s constitutional rights [C088]. His plan was also pockmarked by invidious discrimination on the bases of race & sex. Plus, he was motivated by unlawful contributions.

11. Defendant Schreiber performed his role in the conspiracy by (among other things):

a. lying [C050]-[C054];
b. altering electronic records;
c. appearing in That Case without authority [C053]; and
d. interfering with That Case [C048]-[C054].


12. To be more specific, Defendant Schreiber’s unauthorized lie was captured in public record.

a. On March 11, 2022, he admitted (to USFLND) that Plaintiff had sued Mr. Early in Mr. Early’s individual capacity only.

This was true.

b. However, on that same day (ie, 3/11/22) – and in that same court document – Defendant Schreiber said the opposite.

13. Simply put, Defendant Schreiber lied, and he used that lie as the basis for his appearance/interference in That Case.

14. As such, Plaintiff sought both declaratory and injunctive relief against Defendant Schreiber [C146]-[C147]. Injunctive relief, importantly, that was aimed at “Enjoining Defendant Schreiber from committing further violations of §1983/§1985” and “ever participating in a case in which his client is being sued solely in an individual capacity”. Such relief cannot come soon enough.

D. Immediate Federal Action (Makere v Fitzpatrick, et al)

15. On June 30, 2022, Plaintiff sued Stanley G. Gorsica for similar constitutional deprivations (16-2022-CA-3804-XXXX-MA; Duval County; FL).

16. On August 19, 2022, Mr. Gorsica defaulted on the lawsuit.

17. However, five days later (and seven days late), Defendant Schreiber hopped onto the case to thwart Plaintiff’s recovery of damages (from Mr. Gorsica). Defendant Schreiber – once again – couched his interference on two crucial lies.

a. One of which was the same lie he told in That Case (¶12).

18. The Makere v Gorsica case continues to this day; albeit, obstructed by Defendant Schreiber’s lie-filled interference.

II.    Factual Analysis & Summary

19. Briefly put, Plaintiff charged Defendants Fitzpatrick/etc for committing constitutionally-violative acts. Acts which were non-judicial in nature (ie, administrative records mutilation - ¶7c; legislative rulemaking – ¶7f). He sought both prospective and retrospective relief (individually and officially - ¶2c).

20. Likewise, Plaintiff charged Defendant Schreiber with impeding Plaintiff’s constitutional rights (trial by jury, due process, etc.). Acts which Defendant Schreiber was unauthorized to perform. Plaintiff sought prospective and retrospective relief (individually and officially - ¶2c). Importantly, Defendant Schreiber – during this case – repeated his lies & obstructions; thereby further highlighting Plaintiff’s need for relief.

21. It must also be noted that this Court is adjudicating itself. USFLND (ie, ‘this Court’) is a defendant in this case. Its officers are named defendants. So, the presiding judges (ie, the magistrate and district judge) are judging their peers, and their employer.

OBJECTIONS
III.   Objection #1: Fundamental Omission (Judicial vs Non-Judicial Acts)

22. Page 6 of That Order omitted the fact that Plaintiff also complained of non-judicial acts:
“Here, Plaintiff's allegations against Defendants Walker and Fitzpatrick involve actions taken in a judicial capacity.” - [O006]

23. This is important because:

a. Courts grant immunity to judicial acts (Forrester v White, 484 US 219 (1988)); and

b. That Order based its decision on judicial immunity from judicial acts (highlights added): “Because Plaintiff’s allegations involve actions Defendants Walker and Fitzpatrick took in a judicial capacity, they are entitled to absolute judicial immunity. Plaintiff’s claims against Defendants Walker and Fitzpatrick, therefore, should be dismissed...” - [O006]



24. The record shows, however, that Plaintiff complained of non-judicial acts. Namely, he complained of Defendants Fitzpatrick/etc creation of an unconstitutional local rule (¶7f supra); which is a legislative act (ie, non-judicial). He complained of Defendants Fitzpatrick/etc’s docket mutilation (¶7c); which is an administrative act (ie, non-judicial).

25. By omitting these fundamental pillars of Plaintiff’s complaint That Order pretended as if Plaintiff complained of only judicial acts. Of course, this is not the case. In fact, Count I explicitly charged Defendants Fitzpatrick/etc with “(e) drafting an unconstitutional local rule”.

26. In Limone v Condon, 372 F.3d 39 (1st Cir. 2004), the appellate courts explained that these crucial mischaracterizations cannot survive an appeal:
“It is certainly true that the manner in which a right is defined can make or break a qualified immunity defense
...
Courts must be equally careful, however, not to permit a defendant to hijack the plaintiff’s complaint and recharacterize its allegations so as to minimize his or her liability
...
The [transgressors’] argument has an even deeper flaw: it rests on a self-serving mischaracterization of the factual allegations set out in the amended complaints.” - Limone v Condon, 372 F.3d 39 (1st Cir. 2004)

27. So, since That Order omitted vital words from Plaintiff’s mouth – then used those words’ absence against Plaintiff – this Court is well-positioned to reject its recommendation. And Plaintiff hereby asks this Court to do just that.

IV.    Objection #2: Fundamental Omission (Promulgation vs Enforcement)

28. This Court is also well-positioned to reject That Order’s contention that Plaintiff’s complaint (of Defendants Fitzpatrick/etc’s unconstitutional rule) was about rule enforcement only. Page 8 of That Order, in pertinent part, reads as follows
“Plaintiff is not complaining about the abstract promulgation or existence of a Local Rule; rather, he is complaining because Defendants Walker and Fitzpatrick enforced a Local Rule against him in a particular case.” - [O008]

29. This, of course, is false.

30. Plaintiff complained of the promulgation [and enforcement] of two unconstitutional local rules (ie, Local Rules 5.1(E) and 5.4(A)).

31. In his complaint, he devoted eight (8) paragraphs detailing this [C063]-[C070]. Details which included a statistical summary of the rules’ disproportionate impact on black people (ie, “84% of the [rules’ targets] are black”, even though “only 17% of [the population is] black”).

32. As noted before – and reiterated here – orders that mischaracterize complaints are erroneous (highlights added):

“The ALJ's discrediting of Arakas's subjective complaints was not only legally erroneous, but also unsupported by substantial evidence. Specifically, the ALJ erred by (1) selectively citing evidence from the record as well as misstating and mischaracterizing material facts” - Arakas v SSA, 983 F.3d 83 (4th Cir. 2020)



33. In the instant case, That Order has engaged in selective factual citations and mischaracterizations of material facts. One such material fact is the fact that Defendants Fitzpatrick/etc are being sued for rule promulgation (among other things).

34. Due to this fundamental mischaracterization, this Court is in prime position to deny That Order’s recommendation. And Plaintiff hereby asks that it does.

V.    Objection #3: Crucial Falsehoods (Current Harms)

35. Page 16 of That Order put forth several false statements. First, it claimed that Plaintiff had never alleged current harm:

“Plaintiff has not alleged that Defendant Schreiber is currently engaging in any adverse actions against Plaintiff.” - [O016]

36. This is false. Plaintiff did allege ‘current harm’. He did so when he detailed Defendant Schreiber’s transgressions in That Case (¶1 supra); a case that is still active. A case that the 11th Circuit Court of Appeals deemed to be one of “first impression”. A case that Defendant Schreiber’s misconduct is still impeding. A hindrance that Plaintiff has always sought injunctive relief from.

37. Moreover, Page 6 of Plaintiff’s response document {#37} details (with facts & dates) how Defendant Schreiber is “currently engaging in adverse actions against Plaintiff.” It reads, in pertinent part, as follows:
“...Defendant Schreiber hopped onto the [Makere v Gorsica case] to thwart Plaintiff’s recovery of damages (from Mr. Gorsica). Defendant Schreiber – once again – couched his interference on two crucial lies a. One of which was the same lie he told in That Case <citation omitted>
The Makere v. Gorsica case continues to this day; albeit obstructed by Defendant Schreiber’s lie-filled interference.” - ‘Plaintiff’s Response to...Schreiber’s...MTD’ | {#37} | 9/12/2022

38. So, the record debunks Page 16’s first false statement; rendering it unworthy of a court’s consideration.

39. Page 16 [of That Order], makes another false claim (contending that Plaintiff has not alleged a real/immediate threat):
“Nor has Plaintiff sufficiently alleged a real and immediate threat that he will suffer future harm at the hands of Defendant Schreiber.” - [O016]

A false claim which That Order complemented with a third false claim:
“Plaintiff has failed to establish a "substantial likelihood"... that he will soon encounter Defendant Schreiber again in a context where Defendant Schreiber would likely engage in the same allegedly unlawful behavior.” - [O016]

40. Not only did Plaintiff “allege” that Defendant Schreiber would continue his violative acts (“90. Defendant Schreiber will continue his misconduct” – [C090]), but he explained that Defendant Schreiber’s subsequent violative acts actually materialized.

41. In August 2022, Defendant Schreiber ‘continued his misconduct’ in the Makere v Gorsica case; doing so by resurrecting the same lie he conceived in That Case (¶12).

42. These important falsehoods formed the basis of That Order’s recommendation to dismiss (on the grounds of standing):
“Plaintiff, therefore, lacks standing to seek prospective declaratory and injunctive relief against Defendant Schreiber in his official capacity.” - [O016]

43. In Clark v Georgia, the 11th Circuit Court of Appeals determined that falsehoods and mischaracterizations require reversal (highlights added): “At the outset, we note that the district court mischaracterized Clark's complaint as a petition for a writ of habeas corpus.

...
Accordingly, we conclude that the district court, given the record before it, abused its discretion in determining that Clark's case was frivolous. The district court's dismissal of the case is VACATED and the case is REMANDED for further proceedings.” - Clark v Georgia, 915 F.2d 636 (11th Cir. 1990)

44. So, since That Order based its standing rationale on material falsehoods, this Court is well-positioned to reject the recommendation. And Plaintiff hereby asks that it does.

VI.    Objection #4: Sufficient Facts

45. Next, Plaintiff hereby asks this Court to reject That Order’s final argument. An argument of the “failure to state a relief” variety. An argument – like its predecessors – that was debunked by the record. Page 18 reads as follows:
“Plaintiff’s complaint sets forth no facts that would “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
...
he has failed to plausibly allege any factual allegations that “raise a right to relief above the speculative level.
...
little more than bald accusations...” - [O018]-[O019]

46. This claim is contradicted by the record, and an abuse of discretion.

47. Plaintiff’s complaint gave precise details of Defendant Schreiber’s misconduct. March 11, 2022 marked the date in which Defendant Schreiber committed fraud upon the court. Fraud – importantly – that was captured by public record.

a. Public record which Plaintiff attached to his complaint.

b. Public record (of Defendant Schreiber’s fraud) which Plaintiff’s complaint quoted [C050]-[C051] (highlights added):
“Plaintiff sues [Judge] Early only in an individual capacity. [ECF 26 at 22, 23]” - Charles J.F. Schreiber, Jr. | 3/11/22

“Plaintiff sues [Judge Early] in his official capacity, and in essence, the claims against [Judge Early] are claims against the State of Florida...” - Charles J.F. Schreiber, Jr. | 3/11/22



48. That Order, unfortunately, ignored this fact by cherry-picking other complaint allegations.

49. Yet, as the Courts have held, ignoring fundamental facts (by cherry-picking) is an abuse of discretion (highlights added):
“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.” - Denton v Astrue, 596 F.3d 419 (7th Cir. 2010)

“We conclude that the ALJ erred in assigning little weight to Wang and Anderson's opinions, erred in her characterization of General's opinion, and failed to offer specific, clear, and convincing reasons for discrediting part of Garrison's testimony. We further conclude that the district court abused its discretion” - Garrison v Colvin, 759 F.3d 884 (9th Cir. 2014)

As the Garrison Court held, an abuse of discretion is reversible upon appeal (highlights added):
“We reverse the judgment of the district court” - Garrison v Colvin, 759 F.3d 884 (9th Cir. 2014)

50. Thus, this Court is virtually compelled to reject That Order’s cherry-picking. Especially considering how – at the motion to dismiss phase – That Order was not even empowered to weigh/choose/ignore facts. Instead, it had to take all of Plaintiff’s allegation as true; and in the light most favorable to him (see Pielage v McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008)).

51. Upon doing that, That Order’s final argument will be ripe for rejection. And Plaintiff hereby asks this Court to perform that rejection.

VII.    Objection #5: Essential Requirements of Law (Equal Protection)

52. This Court can also reject That Order because this proceeding has departed from the essential requirements of law.

53. According to Haines v Heggs, 658 So.2d 523 (Fla. 1995), the “essential requirements of law” are defined as follows (highlights added):

“...in determining whether there was a ‘departure from the essential requirements of law’ reviewing courts have inquired: (1) whether the lower court proceeded ‘according to justice’ or deprived the petitioner of fundamental rights, resulting in serious and material injury or gross injustice...” - Haines v Heggs, 658 So.2d 523 (Fla. 1995)

54. The record shows that this Court has deprived Plaintiff of ‘fundamental rights’. Specifically, the 14th Amendment right to equal protection.

55. This Court did that, most notably, by denying Plaintiff access to electronic filing (despite granting each defendant that access) (¶3a supra). Access that has been material.

56. For starters, the disparity in treatment has expressed itself financially. Plaintiff – to this date – has spent approximately $___ printing & shipping papers to this Court. Defendant has spent $0.

57. The disparity in treatment has also expressed itself timewise. Plaintiff – to this date – has spent about 4 hours printing & shipping papers to this Court. Defendant has spent 0 hours doing the same.

58. Most importantly, however, is the legal disadvantage that the disparity has caused Plaintiff. Who has had to wait multiple days to receive Court orders (5-days on average). Defendant has waited 0 days (per order).

a. For instance, That Order took eight (8) days to arrive at Plaintiff’s mailbox. It took zero (0) days to arrive at Defendants’ inboxes.

i. Moreover, Rule 6(d) Fed. R. Civ. P. only recoups three (3) of those days. Meaning that Plaintiff lost five (5) days of response time – simply because the documents were mailed to him. An unequal and harmful mechanic.


59. All three of these injuries (financial, temporal, efficacy) have violated Plaintiff’s ‘fundamental right’ to equal protection. According to the US Supreme Court, such a violation is cause for reversal (highlights added):

“Thus, the Court has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire on racial grounds... decisions of this Court have been concerned largely with discrimination. Since the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice, Hill v. Texas, 316 U. S. 400, 406 (1942), the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at "other stages in the selection process,"
...
In this case, petitioner made a timely objection to the prosecutor's removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed.” - Batson v Kentucky, 476 US 79 (1986)

60. This Supreme Court holding fits the instant case with near-perfection. Plaintiff – like Batson – has provided clear evidence of racial discrimination (¶31). Discrimination that has impaired this proceeding (¶58). And discrimination that none of the transgressors have rebutted.

61. Therefore, this Court has Supreme reason to reject That Order.

VIII.    Objection #6: Essential Requirements of Law (Due Process)

62. This Court also has Supreme reason to reject That Order on the grounds that this proceeding has failed to respect Plaintiff’s right to due process. Committing that failure with its partiality.

63. Partiality that crystalized when this Court decided to adjudicate itself (¶21). An action that has violated 28 USC §455(a) (“shall disqualify [when] impartiality might reasonably be questioned.”).

64. Partiality that the US Supreme Court deems to be a reversible violation of due process (highlights added):
“The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.
...
“The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.” - Marshall v Jerrico, Inc., 446 US 238 (1980)

65. Thus, since this proceeding has failed to uphold the tenets of due process, this Court has Supreme authority to reject That Order.

CONCLUSION

WHEREFORE, Plaintiff respectfully asks this Court to reject That Order’s recommendation of dismissal, because it was based on: (a) clear error; (b) an abuse of discretion; and (c) a departure from the essential requirements of law.

Dated this 18^th day of November 2022.
Respectfully submitted,

	/s/ Elias Makere
	ELIAS MAKERE, FSA, MAAA, Plaintiff PO Box 324 Hobart, IN 46342 P: (904) 294-0026 E: justice.actuarial@gmail.com W: TextBookDiscrimination.com    Get Booked Up on Justice!

CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (contents); thus complying with the font requirements of Local Rule 5.1(C) USFLND. Also, pursuant to Local Rule 7.1(F), this document has less than 8,000 words (3,574).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this ____ day of November 2022, I mailed the foregoing to the Clerk of Courts (via ____). I also emailed an electronic copy to the people on the attached service list.

/s/ Elias Makere

Endnotes