H | CROOKED COURT | OPENING BRIEF (11TH CIRCUIT COURT OF APPEALS)
23-11231-F
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UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
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ELIAS MAKERE, FSA, MAAA
(Appellant/Plaintiff)
v.
HON. MARTIN FITZPATRICK, ET AL
(Appellee/Defendant)
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On Appeal From The
United States District Court, Florida, Middle District
4:22-cv-000315
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APPELLANT’S OPENING BRIEF
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Elias Makere, FSA, MAAA
Appellant
PO Box 324
Hobart, IN 46342
P: 904.294.0026
E: Justice.Actuarial@gmail.com
W: TextBookDiscrimination.com
Get Booked Up on Justice!
ORAL ARGUMENT REQUESTED
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
Makere v Fitzpatrick, et al, 23-11231
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Lower Tribunal:
Bolitho, Zachary (Hon.)Magistrate
Winsor, Allen (Hon.)District Judge
Non-Parties:
Early, Edward Gary(Tallahassee, FL)
Parties:
Cannon, Hon. HopeAppellee
Fitzpatrick, Hon. MartinAppellee
Frank, Hon. MichaelAppellee
Schreiber, Charles JF (Jr.)Appellee
Walker, Hon. MarkAppellee
Winsor, Hon. AllenAppellee
USFLNDAppellee
Makere, Elias (FSA, MAAA)Appellee
Appellant is not a subsidiary/affiliate of a publicly owned corporation. Pursuant to Rule 26.1-2 11th Cir. R., Appellant does not know of any other entities that have interest in this case. Appellant hereby certifies that this CIP is complete.
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then, the last defendant[below] amassed his own bad data2/ to dole out punishment – like a mad-hatter/
so, going forward, may this court pronounce the latter/ as a reversible denunciation of the law...
...then announce the order [from below] as shattered//
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2 the first “a” [in data]* is pronounced like “ah” (as in “spa”);
* the second “a” in each pronunciation is the same (ie, the relaxed “ah”)
Appellant respectfully requests oral argument as this case presents novel/complex topics of law and public trust. In particular, he believes verbal presentation will benefit Issues I (¶73), II (¶90), III (¶102), and IV (¶115). Pursuant to Rule 34(a) Fed. R. App. P. a party can request oral argument from this Honorable Court (also see Rule 28-1(c) 11th Cir. R.).
At this point, Appellant does not know whether Appellees will file a brief. Nor is he sure if he will file a subsequent reply brief. Thus, it appears important for this Honorable Court to entertain oral argument so that any questions that it has may be addressed.
Lastly, Appellant asserts that none of the factors listed in Rule 34(a)(2) Fed. R. App. P. exist in this appeal.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
| Baker v. Alderman158 F.3d 516 (11th Cir. 2001) | 22,27 |
| Batson v Kentucky476 US 79 (1986) | 42 |
| Bivens v Six Unknown Named Agent403 US 388 | 10,17 |
| Bounds v Smith430 US 817 (1977) | 24,25 |
| Cooper v. Leatherman532 US 42 (2001) | 45 |
| Garrison v. Colvin759 F.3d 884 (9th Cir. 2014) | 38 |
| Haines v. Heggs658 So. 2d 523 (Fla. 1995) | 40 |
| James v. Jacobson6 F.3d 233 (4th Cir. 1993) | 22 |
| Machules v. Dept. of Administration523 So.2d 1132 (Fla. 1988) | 47 |
| Makere v. Allstate3:20-cv-00905 (USFLMD 2020) | 36 |
| Makere v. Early4:21-cv-00096 (USFLND 2021) | 36 |
| Makere v. Early21-11901-G (USCA11 2021) | 10 |
| Marshall v Jerrico446 US 238 (1980) | 46 |
| Massengale v Ray267 F.3d 1298 (11th Cir. 2001) | 25 |
| Peer v Lewis606 F. 3d. 1306 (11th Cir. 2010 | 20 |
| Taylor v. Pekerol760 Fed. App’x, 647 (11th Cir. 2019) | 20,27,31,35 |
| USA v Rodriguez363 F.3d 1134 (11th Cir. 2004) | 33 |
| USCS v. Maryland Casualty55 So. 2d 741 (Fla. 1951) | 26 |
| 14th Amendment | 20,41 |
| Local Rule 5.1(E) USFLND | 10,13,25 |
| Local Rule 5.4(A) USFLND | 10,13,16,18,19,23,25 |
| Rule 3 Fed. R. App. P. | 1 |
| Rule 28 Fed. R. App. P. | viii |
| Rule 34 Fed. R. App. P. | ii |
| Rule 28-1 11th Cir. R.. | ii |
| 28 USC §455 | 13,46 |
| 28 USC §1291 | 1 |
| 28 USC §1294 | 1 |
| 28 USC §1331 | 1 |
| 28 USC §1915 | 40 |
| 42 USC §1983 | 1,2,10 |
| 42 USC §1985 | 10 |
| §120.569 FS | 3 |
| §760.11 FS | 3 |
| §90.201 FS | 7 |
| http://MyFloridaLegal.com/Questions | 12 |
| TextBookDiscrimination.com/Analysis/Demographics/DOAH/ | 18 |
| TextBookDiscrimination.com/Analysis/Demographics/ProSe/ | 18 |
INTRODUCTION
Appellant, Elias Makere, was the Plaintiff in the lower tribunal; and will be referred to in this brief as “Civilian X” (Rule 28(d) Fed. R. App. P.). Appellees (ie, Judge Martin Fitzpatrick, et al), were the defendants below; and will be referred to as “Those Officials”. The person whom Those Officials were covering for was a state hearing officer named Edward Gary Early; hereinafter referred to as “Judge Y”.The following references will be used in this brief: [A_]Appendix on Appeal1/
The following abbreviations will also be used:
ALJAdministrative Law Judge
DCADistrict Court of Appeals (FL)
DOAHDivision of Administrative Hearings (FL)
EEOCEqual Employment Opportunity Commission
FACFlorida Administrative Code
FCHRFlorida Commission on Human Relations
FSFlorida Statute
LTLower Tribunal
RRTFBRules Regulating the Florida Bar
USFLMDUS District Court, Florida, Middle District
USFLNDUS District Court, Florida, Northern District
All statutory and rule references are made to their 2020 versions (unless otherwise indicated).
JURISDICTIONAL STATEMENTS
STATEMENT OF THE ISSUES ON APPEAL
I. Whether district courts can use a demonstrably false basis to sanction litigants.II. Whether district courts can impose sanctions upon making a false finding of ‘fact’.
III. Whether district courts can impose sanctions upon making two false findings of ‘fact’.
IV. Whether district courts can impose sanctions upon making three false findings of ‘fact’.
V. Whether district courts can fail to respect the constitutional guarantee of Equal Protections Under the Law.
VI. Whether district courts can fail to respect the constitutional guarantee of Due Process.
STATEMENT OF THE CASE
Overview
2. Those Officials consisted of: five (5) federal judges; one (1) district court; and one (1) state assistant attorney general (FL). The three most prominent acts that Civilian X charged them with were: (a) legislating an unconstitutional local rule; (b) mutilating documents that were sent to the clerk; and (c) committing perjury.
3. In order to understand how/why the parties had occasion to interact, we must review the preceding/originating disputes.
b. The second: a §1983 (ie, the ‘Ku Klux Klan Act of 1871’) lawsuit between Civilian X and Judge Y (ie, Edward Gary Early, FL ALJ).
Originating Legal Action (Civilian X v Allstate)
5. On September 8, 2017, Allstate denied both allegations (see [A0040]). Importantly, the former employer explicitly acknowledged that Civilian X’s charge contained “allegations of discrimination based upon race and sex discrimination”:
6. On December 15, 2017, the FCHR concluded its investigation. Notably affirming that race and sex were the bases of Civilian X’s complaint (see [A0044]).
7. On January 19, 2018, Civilian X filed his Petition for Relief with the FCHR. Just as in his original charge, he listed only race and sex as the protected characteristics for his complaint (see [A0046]). Thus, pursuant to §760.11(7) FS and §120.569 FS, the FCHR transmitted it to DOAH.
8. After a series of irregularities (authority breaches, deposition sit-ins, recusals, etc.), Judge Y became the administrative hearing officer over Civilian X’s case (circa November 13, 2018).
9. Despite the procedural incongruities, the facts continued to develop in Civilian X’s favor; heavily. Facts which included – but were not limited to:
b. Cursing at Plaintiff for buying a condolence card [A0069];
c. Death threats; smear campaigns; lethal attacks [A0085];
b. Allstate made Civilian X pay $1,025 for an actuarial exam fee; a payment it never required from any of its other employees [A0073], [A0101].
c. Allstate paid Civilian X an annual salary that was significantly lower than his similarly-situated comparators.
13. Faced with these probative facts, Judge Y went on the attack.
Judge Y’s Unlawful Conduct: (A) Spoliation of Evidence
15. After the hearing – around January 9, 2019 – Civilian X asked Judge Y for a redress of the cessation order (citing due process). He further detailed the importance of the requested testimony/revelation [A0027].
16. Two days later (January 11, 2019), Civilian X received a copy of the hearing transcript. It was missing one page (and one page only). That crucial page was the one that contained testimony on the payment disparity (¶11b) - and Judge Y’s cessation order. [A0027]
Judge Y’s Unlawful Conduct: (B) Perjury
20. The first page of the document had a section titled “Statement of the Issue”. Where Judge Y excluded Civilian X’s sex discrimination charge (see [A0048]-[A0049]).
21. The second page had a section titled “Preliminary Statement”. Where Judge Y continued to exclude Civilian X’s sex discrimination charge. This time, however, Judge Y made the fateful declaration that Civilian X never complained of sex discrimination prior to the DOAH proceedings (see ¶7, supra) (see [A0046]) (highlights added).
“[Civilian X], also for the first identifiable time, alleged that Allstate, and in particular [Civilian X’s manager], engaged in sexually provocative and inappropriate behaviors, which [Civilian X] alleged to be “sexual harassment and discrimination””22. Judge Y repeated that highlighted line (ie, “for the first identifiable time”) several more times throughout his authored RO.
23. That statement, of course, was false.
24. Civilian X did charge Allstate with sex discrimination.
b. Allstate acknowledged the sex basis (9/8/17, ¶5); and
c. The FCHR explicitly ruled on the basis of sex (12/15/17, ¶6)
26. On June 27, 2019, the FCHR issued its Final Order (“FO”). In which it listed race as the only protected characteristic in Civilian X’s complaint (see [A0053]); and adopted Judge Y’s ruling.
27. Judge Y’s lie had its intended effect.
28. Now, it is important to recognize Judge Y’s knowledge of the truth.
Judge Y’s Knowledge of the Truth
30. On February 6, 2019, Allstate moved Judge Y to take official recognition of the FCHR’s Determination (under §90.201 FS).3/
31. That state-issued Determination letter read, in pertinent part, as follows (highlights added):
“Complainant worked for Respondent as an Actuary. Complainant alleged that Respondent discriminated against him based on his race and sex.”32. On February 18, 2019, Judge Y granted the motion [A0146]. Thereby cementing – unequivocally – that he knew that Civilian X charged Allstate with sex discrimination. He said the following (highlights added).
“[Allstate’s] Motion for Official Recognition requests that official recognition be taken of the Notice of Determination...Those documents provided the point of entry to [Civilian X] for this proceeding.”33. Thus, Judge Y’s repeated “statements” to the contrary were a known lie (a massive lie – in fact).
34. A lie that impacted the outcome of Civilian X’s lawsuit against Allstate. A case which sought monetary damages (among other things).
35. Another case which sought monetary damages was/is the federal lawsuit Civilian X filed against Allstate on August 12, 2020 [A0054]. A lawsuit seeking full relief from Allstate’s damaging discrimination; via a full & fair proceeding emancipated by Judge Y’s klan-destined conduct. A lawsuit, importantly, that continues to this day [A0150].
Preceding Federal Action (Civilian X v Judge Y)
37. On April 6, 2021, USFLND processed Civilian X’s filing fee (see [A0161]).
38. Three days later, however, USFLND’s magistrate entered a Report & Recommendation (“R&R”); requesting a [sua sponte] dismissal of Civilian X’s complaint against Judge Y [A0163]. Doing so under the authority of 28 USC §1915; a statute permitting dismissal of unpaid (ie, ‘forma pauperis’) lawsuits.
“The docket also shows that [Civilian X] has now paid the $402.00 filing fee.”
40. Soon thereafter - on April 29, 2021 - the LT entered Final Judgment; adopting the R&R’s recommendation.
41. Neither the R&R nor the Final Judgment cited a law/statute/rule permitting it to dismiss Civilian X’s paid complaint.
42. It must also be noted that Judge Y (ie, the case defendant) had yet to appear.
43. In due time (ie June 4, 2021), Civilian X filed an appeal.
44. On December 30, 2021, Civilian X won his case (21-11901-G; USCA11). Yet, upon recommencing his lawsuit against Judge Y, Those Officials’ non-judicial obstructions became more pronounced.
45. The key obstruction from the federal officials was the legislation (and enforcement) of an unconstitutional local rule (ie, USFLND Local Rule 5.1(E) and 5.4(A)). The key obstruction from the state official (ie, Appellee Schreiber) was defrauding the LT.
Immediate Federal Action (Civilian X vs Those Officials)
48. On March 11, 2022, Appellee Schreiber made his appearance; purporting to be Judge Y’s representative. He did so via motion (“That Motion”). [A0185]
49. On Page 7 of That Motion, he acknowledged the truth: that Civilian X had sued Judge Y in Judge Y’s individual capacity only:
“[Civilian X] sues [Judge Y] only in an individual capacity. [ECF 26 at 22, 23]”50. On Page 25 of That Motion, though, Appellee Schreiber stated the opposite:
“[Civilian X] sues [Judge Y] in his official capacity, and in essence, the claims against [Judge Y] are claims against the State of Florida...”51. Appellee Schreiber, importantly, was lying (a lâ Judge Y in April 2019; ¶19-34 supra). Following Appellee Schreiber’s 3/11/22 submission, Civilian X pointed out (1) the facts; and (2) Appellee Schreiber’s own contradictions. Appellee Schreiber responded by failing to state any fact, rule, statute, case law, or common law practice to overcome his materially false statement. Instead, Appellee Schreiber said the facts were ‘subjective/speculative’, and that he was going to change nothing.
52. Appellee Schreiber, importantly, used his lie as the basis for his appearance/interference. As an Assistant Attorney General (FL), Appellee Schreiber was/is prohibited from representing (a) private citizens; and/or (b) public officials sued in their individual capacities. The Florida Attorney General’s website says this:
“The Lawyer Referral Service at the Florida Bar can assist you in contacting an attorney in Florida with expertise relevant to your situation. By law, the Office of the Attorney General may not represent private citizens in legal disputes.”53. The bottom line is that Appellee Schreiber was prohibited from appearing in That Case on behalf of Judge Y. He lied to evade that prohibition, though. And his lies have been borne out of the same invidious discrimination that compelled Judge Y to commit perjury. Appellee Schreiber’s aims – as well as those of his companions – have been to abridge Civilian X’s constitutional rights.
54. Sharing in Appellee Schreiber’s invidious discrimination against black people were Appellees Fitzpatrick; Walker; USFLND; Frank; Cannon; and Winsor (“Appellees Fitzpatrick/etc”)
55. Appellees Fitzpatrick/etc entered into a pre-suit pact (and carried it out) to impede/defeat Civilian X’s constitutional rights (to a fair trial; to a trial-by-jury; and to the equal protections of the law). With full certainty, Those Officials upheld their end of the bargain by: (a) entering unauthorized decisions; (b) lying; (c) refusing to disqualify themselves (in contravention of 28 USC §455); (d) manipulating the trial docket; (e) drafting unconstitutional local rules; and (f) enforcing unconstitutional local rules.
56. The record is clear on their misdeeds.
ii. Despite Civilian X’s numerous pleas for relief, Appellees Fitzpatrick/etc forced Civilian X to suffer unequal hardships due to the rule.
2. Hardships in terms of time spent (ie, Civilian X had to spend dozens of hours printing & shipping court documents, while Judge Y spent 0); and
3. Hardships, most importantly, in terms of litigation efficacy (ie, days lost for physically filing vs electronically filing; functional deficiencies of hardcopies vs electronic copies).
b. Another example: it took 6 days for Appellee to receive Appellee Fitzpatrick/etc’s 3/31/22 paper ({#40} from That Case). It took 0 days, though, for Judge Y to get it.
2. He sent them via postal mail (see ¶56a, supra). He organized them; and fastened them with paper clips.
3. Despite that, though, Appellees Fitzpatrick/etc’s assistant transposed Civilian X’s documents, and entered them into the docket.
4. Days later, Appellees Fitzpatrick/etc acknowledged the transposition. Thereby approving the assistant’s manipulation of Civilian X’s filings.
5. A manipulation that Appellees Fitzpatrick/etc used to deny Civilian X relief.
ii. The LT did not file the documents until January 30, 2023 (110+ days later).
iii. Nevertheless, the LT used its self-produced delay to spark its subsequent punishment [of Civilian X]. Because ten (10) days later – on February 9, 2023 – the magistrate recommended sanctions.
58. Moreover, there is no legitimate reason for the disparity. Neither USFLND’s rules nor USFLND’s website state a compelling government interest in the discrimination.
59. Plus, there is no record that USFLND has ever allowed the public to weigh in on the rule. Instead, the LT has dictated to the people how the people will be governed.
60. Importantly, the pro se distinction is just a cover for targeting black people (especially black men who litigate civil rights cases).
ii. The following month – on July 13, 2022 – Civilian X asked again. Appellees Fitzpatrick/etc – again – did not dispute the facts/statistics related to its discriminatory rule.
d. Additionally, USFLND’s pro se vs attorney distinction is flawed on its face. There are many pro se litigants who are attorneys.
e. Lastly, one of the most influential federal cases (Bivens v Six Narcotics Agents) was initiated by a pro se litigant. Further showing that USFLND’s pro se distinction lacks legitimacy.
Undisputed Facts Revealing Those Officials’ Unconstitutional Predation of Black People
64. He completed his six-day effort on April 24, 2022. Two days later, of course (ie, 4/26/22), he filed suit (¶46 supra).
65. In fact, Civilian X presented these results (of Those Officials’ discrimination) directly to Those Officials. [A0209] (¶60b)
66. Plus, Civilian X published this analysis (and underlying data) on his website.
68. Furthermore, these facts lead to the realization that Appellees Fitzpatrick/etc use Local Rule 5.4 to effectuate their self-fulfilling prophesy [of abridging the constitutional rights of black people].
b. Those Officials use the anti-black stratification to deter others (eg, prospective attorneys) from helping black litigants.
STANDARD OF REVIEW
SUMMARY OF ARGUMENTS
72. Thus, this Court of Appeals is well-positioned to reject the LT’s order; and eradicate the unconstitutional/discriminatory provisions of USFLND’s Local Rules.
OVERVIEW I
STANDARD OF REVIEW I
“[The 11th Circuit Court of Appeals] reviews the district court’s award of sanctions under Rule 11 and 42 USC §1988 for abuse of discretion.”75. As the federal circuit courts have long established, discretion is abused when a lower court bases its decision on a false premise (highlights added):
“Finally, discretion may be abused by an exercise that is flawed by erroneous factual or legal premises.”
ARGUMENT I
77. To be specific, Page 4 of the magistrate’s order claimed that the action below had no reasonable factual basis:
“...far-fetched government conspiracy that had no reasonable factual basis”78. This is false.
79. The discriminatory/unconstitutional nature of Local Rule 5.4 is clear. In fact, Civilian X outlined its illegitimacy in his complaint (highlights added):
“...[Those Officials discriminate] against different classes of litigants. Local Rule 5.4(A)(3) states that pro se parties must send hard copies of their court papers. That same rule, though, alleviates represented parties from this hardship.80. Moreover, the US Supreme Court has deemed unexplained government discrimination to be unconstitutional (highlights added):
64. Not only does the disparity affect time & money, it also affects the efficacy of litigation.
a. Pro se litigants lose multiple days due to the transit times (mailing documents to & from USFLND). Days which they could use for research, evidence collection, writing, and self-representation...
65. Moreover, there is no legitimate reason for the disparity. Neither USFLND’s rules nor USFLND’s website state a compelling government interest in the discrimination.
“The Court of Appeals for the Fourth Circuit affirmed in all respects save one. It found that the library plan denied women prisoners the same access rights as men to research facilities. Since there was no justification for this discrimination, the Court of Appeals ordered it eliminated.81. Importantly, Civilian X performed an in-depth analysis of the discriminatory ventures of Those Officials (¶63-68, supra).
But the cost of protecting a constitutional right cannot justify its total denial.”
82. The aforementioned in-depth analysis took Civilian X a significant amount of time (¶63-66, supra).
83. In fact, Civilian X presented these results directly to Those Officials; he even disclosed this presentation in his complaint (¶65, supra).
84. Plus, Civilian X published this analysis (and the underlying data) on his website. A process that took him hundreds of hours to complete (over a 7-week period) (¶66, supra).
85. Put simply, evidence of Those Officials’ discrimination & unconstitutionality has a deep basis in fact.
86. This factual basis is important, because it refutes the LT’s order. Courts have held - for a long time now - that sanctions are inapplicable when a factual basis [for a complaint] exists (highlights added):
“[appellant] also argues that Rule 11 sanctions were not appropriate because [appellee] failed to provide the district court with evidence that [appellant]'s case or pleadings (1) had no reasonable factual basis...
...We therefore VACATE the order imposing sanctions and REMAND to the district court for further proceedings consistent with this opinion.
CONCLUSION I
88. Plus, given the US Supreme Court mandate (ie, the Bounds decision) for abolishing discriminatory rules/customs, this Court is also well-positioned to direct the LT to eradicate the unconstitutional provisions from its set of Local Rules (ie, Local Rule 5.1(E); and Local Rule 5.4(A)(3)).
89. At the very least – and notwithstanding the Lower Tribunal’s other flaws (infra) – the LT’s false basis is sufficiently ripe for this Court’s reversal of its appealed order [from below].
OVERVIEW II
STANDARD OF REVIEW II
“[The 11th Circuit Court of Appeals] reviews the district court’s award of sanctions under Rule 11 and 42 USC §1988 for abuse of discretion.”92. As the 11th Circuit has previously established, discretion is abused when a lower court makes an erroneous finding of fact (highlights added):
“A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.”
ARGUMENT II
94. To be specific, Page 5 of the magistrate’s order claimed that “[Civilian X] has a history of filing frivolous complaints” [A0199].
95. This – once again – is false.
96. Civilian X did not have any history of filing frivolous complaints.
97. No Court had ever entered a “with prejudice” dismissal (which featured a judgment of “frivolity”) against any of Civilian X’s complaints.
98. In fact, the LT’s appealed order failed to cite any case that fit that description.
99. Moreover, no Court (nor civil opponent) had ever [even] threatened Civilian X with the label “frivolous”.
100. According to Florida’s Supreme Court, the incorrect nature of the LT’s finding of ‘fact’ renders its decision as being ‘clearly erroneous’; and subject to reversal (highlights added):
“In considering this matter we should also decide whether under existing statutory law we should adhere to our pronouncement that “the probity of the evidence is for the industrial commission to determine and their findings should not be reversed unless shown to be clearly erroneous.”
CONCLUSION II
OVERVIEW III
STANDARD OF REVIEW III
104. More specifically, this Circuit has previously established that an ‘abuse of discretion’ occurs when a lower court makes an erroneous finding of fact (highlights added):
“A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.”
ARGUMENT III
106. This time, the LT claimed that Civilian X had filed five administrative charges of discrimination:
“Civilian X has filed five state administrative claims “seeking redress for his termination””107. Once again, the LT is wrong; because this statement is false.
Verifiably false
108. Civilian X has not filed five administrative claims “seeking redress for his termination [from Allstate]”.
109. Civilian X has filed two (2).
b. The second was on April 10, 2019 (FCHR 2019-19238) (¶18a).
111. According to the 11th Circuit Court of appeals, the LT’s finding was “clearly erroneous”:
“For a factual finding to be “clearly erroneous,” this court, “after reviewing all of the evidence, must be left with a definite and firm conviction that a mistake has been committed.”112. In the instant case, the government records (see ¶109) should leave this Court with the “definite and firm conviction” that the LT was wrong (ie, Civilian X only filed 2 discrimination charges against Allstate – not 5).
113. Moreover, both of those administrative charges graduated & congealed into Civilian X’s ongoing federal lawsuit against Allstate (¶35 supra).
CONCLUSION III
OVERVIEW IV
STANDARD OF REVIEW IV
117. Plus, for this particular issue, this Court has the impetus for reversal. An impetus which exists due to this Court’s previously established precedent for rebuking erroneous findings of fact (highlights added):
“A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.”
ARGUMENT IV
119. Page 9 of the magistrate’s order claimed that “Plaintiff became vindictive and began acting out of spite and anger” [A0201].
120. This statement is false.
121. Civilian X never acted out of spite/vindictiveness/anger in the LT. Nor did he ever act with those motivations in any of his contemporaneous legal actions (ie, Makere v Allstate; Makere v Early).
122. Instead, Civilian X proceeded on truth, facts, and logic. The facts – in this case and in others – have been produced; and they have gone undisputed.
All of them
123. Plus – and as the record shows (¶63-68, supra) – Civilian X spent hundreds of hours procuring the facts, analyses, and legal vehicles needed to “petition the government for a redress of grievances”.
124. Additionally, Civilian X has spent thousands of hours developing & updating a free, comprehensive, self-help website for pro se litigants. As of December 31, 2023, Civilian X has spent 9,806 hours building TextBookDiscrimination.com. It has well-over 35,000 webpages; which are:
b. Fast;
c. Available for all;
d. Devoid of ads;
e. Devoid of contracts;
f. Devoid of sign-ups; and
g. Devoted to civil rights litigants
125. Moreover, the LT’s appealed order failed to produce any evidence to support its false statement. The record shows that the LT never observed Civilian X [do anything – of any king] (neither via phone nor via in-person hearing). Nor has the LT ever attempted to commandeer Civilian X into its presence for the purpose of questions/observations.
126. Of course - as the Courts have held – erroneous statements equate to abuses of discretion (highlights added):
“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”127. At the end of that same vein lies the heart of the LT’s infarction. An infarction which the Garrison court unclogged with a reversal (highlights added):
“We reverse the judgment of the district court”
CONCLUSION IV
129. Unfortunately, though, the above-detailed infraction was just a fraction of the LT’s abuses. Because, the lower court’s departure from the essential requirements of law points to a systemic issue (ie, Issue V infra). One which has tumored enough to receive this higher court’s remedy.
OVERVIEW V
STANDARD OF REVIEW V
“...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; (2) whether the judgment is authorized by law or is invalid, illegal, essentially irregular, or prejudicial; (3) whether the court rendering judgment lacked jurisdiction; (4) whether the circuit court’s appellate judgment violates established principles of law; (5) whether the judgment results in a substantial injury to the legal rights of the petitioner; (6) whether the judgment constitutes a palpable miscarriage of justice; or (7) whether the lower court applied the wrong rule of law to the evidence”
ARGUMENT V
133. The LT did that, most notably, by denying Civilian X access to electronic filing (despite granting each defendant/appellee that access) (¶55-68, supra). Access that has been material.
134. For starters, the disparity in treatment has expressed itself financially. Civilian X spent dozens of dollars printing & shipping papers to the LT. Those Officials spent $0.
135. The disparity in treatment also expressed itself timewise. Civilian X spent roughly 5 hours printing & shipping papers to the LT. Those Officials spent 0 hours doing the same.
136. Most importantly, however, is the legal disadvantage that the disparity caused Civilian X. Who had to wait multiple days to receive Court orders (5 days on average). Those Officials waited 0 days (per order). (¶56 supra)
137. All of these discriminatory injuries (financial, temporal, efficacy) violated Civilian X’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,138. The above-quoted Supreme Court holding fits the instant case with near-perfection. Civilian X – like Batson – has provided clear evidence of racial discrimination (¶63-68, supra). Discrimination that has impaired the proceeding below (¶56). And discrimination that none of the transgressors have rebutted....
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."
CONCLUSION V
140. In addition to departing from the essential requirements of law regarding the Equal Protection clause, the LT also departed from them in terms of the US Constitution’s Due Process guarantee (Issue VI, infra).
OVERVIEW VI
STANDARD OF REVIEW VI
“Cooper’s petition for a writ of certiorari asked us to decide whether the Court of Appeals reviewed the constitutionality of the punitive damages award under the correct standard and also whether the award violated the criteria we articulated in Gore. We granted the petition to resolve confusion among the Courts of Appeals on the first question. [4] 531 US 923 (2000). We now conclude that the constitutional issue merits de novo review.”
ARGUMENT VI
144. 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.”145. As far as inequities go, the LT exhibited its own when it sparked sanctions on a pretended offense [of its own volition] (¶56b). As explained, Civilian X was not responsible for the 110+-day delay (between the day he filed his legal papers and the day the LT docketed them). Legal papers, importantly, that sparked the LT’s appealed order – which was entered ten (10) days later.“...”
“The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.”
146. By dictated local rule, the LT was the culpable party (for docketing Civilian X’s papers 110+ days after he mailed them). Yet, the LT punished Civilian X for the LT’s own transgressions.
CONCLUSION VI
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2 the first “a” [in data]* is pronounced like “ah” (as in “spa”);
* the second “a” in each pronunciation is the same (ie, the relaxed “ah”)
Had the LT’s appealed order not been based on a false premise, this appeal would not exist (Issue I). Yet it does, and the appealed order’s continued falsehoods further eroded its legitimacy (II-IV). Plus, the proceeding itself departed from the essential requirements of law; thereby violating two crucial pillars of the US Constitution (VII-VIII).
WHEREFORE, Appellant (ie, Civilian X) asks this Court to reverse the lower tribunal’s judgment, because it was falsely premised, erroneous, constitutionally violative, and harmful.
Dated this 12th day of January 2024.
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!
1. Type-Volume
| ☒ | This document complies with the word limit of Rule 32(a)(7)(B)(i) Fed. R. App. P., because - excluding the parts of the document exempted by Rule 32(f) - this document contains 8,534 words. |
| ☐ |
2. Typeface and Type-Style
| ☒ | This document uses Courier New (12-Pt) Font; thereby complying with the typeface requirements of Rule 32(a)(5)(B) Fed. R. App. P.. This document also satisfies the type-style requirements of Rule 32(a)(6). |
Date Elias Makere, FSA, MAAA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of January 2024, I electronically filed the foregoing with the Clerk of Courts by using PACER; which will send a notice of electronic filing to the attached service list.
/s/ Elias Makere
Endnotes: (text-searchable)
1/ [A0210] means page 210 from the appendix.2/ the appellees/defendants consist of: 5 federal judges; 1 district court; and 1 assistant attorney general (FL).
3/ at DOAH, “official recognition” = judicial notice
4/ the case [below] began in state court before getting transferred into federal court (USFLMD; 7/5/22). USFLMD later transferred this action to the northern district (USFLND; 8/30/22). Notably, the final three federal officials were added via complaint amendment.
Link to Complaint (HTML, PDF, Video) | Makere v Fitzpatrick, et al
| HTML | TextBookDiscrimination.com/Info/Misc/CrookedCourt/Complaint |
| TextBookDiscrimination.com/Files/USFLMD/22000734_AAC_20220729_234622.pdf | |
| Video | https://youtu.be/_RaJXFfXOCE |
Electronic Copy: (text-searchable)
TextBookDiscrimination.com/Files/CA11/23011231_IB_20240124_193439.pdf
TextBookDiscrimination.com/Info/Misc/CrookedCourt/OpeningBrief
SERVICE LIST
Assistant United States Attorney
T: 904.301.6324
E: Ronnie.Carter@USDOJ.gov
300 N. Hogan St., Ste 700
Jacksonville, FL 32202
(appearing for Appellees/Defendants Fitzpatrick/etc)
John Bennett
E: Miguel.Olivella@MyFloridaLegal.com
E: John.Bennett@MyFloridaLegal.com
P: 850.414.3300
F: 850.488.4872
Office of the Attorney General
The Capitol PL-01
Tallahassee, FL 32399
(appearing for Appellee/Defendant Schreiber)
Please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
