H | ALJ PERJURY (EDWARD GARY EARLY) | OPENING BRIEF #2 (11TH CIRCUIT COURT OF APPEALS)
22-13613-H
****************
************************************************
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
************************************************
***********************************
ELIAS MAKERE, FSA, MAAA
(Appellant/Plaintiff)
v.
HON. E. GARY EARLY, ALJ
(Appellee/Defendant)
***********************************
On Appeal From The
United States District Court, Florida, Northern District
4:21-cv-000096
************************************************
APPELLANT’S OPENING BRIEF
************************************************
Elias Makere, FSA, MAAA
Appellant/Plaintiff (“Civilian X”)
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 Early, 22-13613
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Lower Tribunal:
Cannon, HopeMagistrate
Winsor, AllenDistrict Judge
Non-Parties:
Allstate Insurance Company(NYSE: ALL)
Division of Administrative Hearings (FL)
Florida Commission on Human Relations Gorsica, Stanley G. (FL)
Parties:
Early, Hon. E. Gary (ALJ)Defendant
Makere, Elias (FSA, MAAA)Plaintiff
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.
----
Draped in his robe of purported invincibility, the judge covered for the rich & powerful. And draped in their thicker robes of the same property, the judges covered for the original judge’s unoriginal deception.
/plus, what they’ve pressed below is a magical show/
//as they tell their first impressionables that they’ve been here before//
Yet, the truth has uncovered their lack of magical powers. And what truly will vanish is the audience’s respect for their garment.
So, may this court denounce these non-judicial acts, and remand this case back. Whereby a jury can apply the law to the facts.
----
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 II through V. 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.).
Lastly, Appellant asserts that none of the factors listed in Rule 34(a)(2) Fed. R. App. P. exist in this appeal.
Certificate of Interested PersonsC1
Prologuei
Statement Regarding Oral Argumentii
Table of Contentsiii
Table of Authoritiesiv
Introductionix
Jurisdictional Statement1
Statement of Issues on Appeal1
Statement of the Case2
Overview2
Underlying Facts2
Ultimate Facts9
Immediate Procedural History9
Standard of Review14
Summary of Argument15
Issue I (LT Erred by Not Allowing Amendment)16
Issue II (LT Erred by Adopting False Premise)21
Issue III (No Immunity for 1st Non-Judicial Act)25
Issue IV (No Immunity for 2nd Non-Judicial Act)34
Issue V (Essential Requirements of Law)43
Issue VI (Due Process Violation - Records Mutilation)47
Issue IX (LT Erred by Dismissing Declaratory Relief)51
Conclusion59
Certificate of Compliance-
Certificate of Service-
CASES
Abeita v TransAmerica,
159 F. 3d 246 (6th Cir. 1998)38
Ashcroft v Iqbal,
556 US 662 (2009)57
Babrocky v. Jewel,
773 F.2d 857 (7th Cir. 1985)40
Bell v Twombly,
550 US 544 (2007)57
Bradley v Fisher,
80 US 33536
Broward County v. Narco,
359 So.2d 509 (FL 4DCA 1978)40,41
Bryant v Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001)17
Castillo v Allegro,
603 F. App’x. 913, 915 (11th Cir. 2015)14
Chaparro v. Carnival Corp.,
693 F. 3d 1333, 1335 (11th Cir. 2012)14
Cincinnati v Holbrook,
867 F. 2d 1330 (11th Cir. 1989)52,54
Cincinnati v Holbrook,
867 F. 2d 1330 (11th Cir. 1989)48
Cox v Univ of Florida,
DOAH 03-467238
Dykes v. Hosemann,
776 F.2d 942, 945 (11th Cir. 1985)27
Edgerton v International,
89 So. 2d 488 (1956)37
Ex Parte Virginia,
100 US 33941
Ex Parte Young,
209 US 123 (1908)42
Forrester v White,
484 US 219 (1988)29,32,36
Genentech v. Eli Lilly,
998 F. 2d, at 93654
Guideone v. Old Cutler,
420 F.3d 1317 (11th Cir. 2005)17,53
Haines v Heggs,
658 So. 2d 523 (Fla. 1995)44
Hampton v United States,
425 US 484 (1976)48
Harper v. Merckle,
638 F.2d 848 (5th Cir.)27
Henson v. Columbus Bank Trust Co.,
770 F.2d 1566, 1574 (11th Cir. 1985)17
In re Rasbury,
24 F.3d 159, 168 (11th Cir. 1994)53
La Grasta v First Union,
258 F.3d 840 (11th Cir. 2014)49
Lauderdale Lakes v. Corn,
427 So.2d 239 (FL 4DCA 1983)40
Lerwill v Joslin,
712 F.2d 435, 438 (1th Cir. 1983)22
Limone v Condon,
372 F.3d 39 (1st Cir. 2004)24
Makere v Fitzpatrick,
(4:22-cv-00315; USFLND)45
McDougald v. Jenson,
786 F.2d 1465 (11th Cir. 1986)52
Mikko v Atlanta,
857 F.3d 1136 (11th Cir. 2017)26
Mills v State,
177 So.3d 984 (1DCA 2015)50
Mills v USA,
36 F.3d 1052 (11th Cir. 1994)22
Schrimsher v Palm Beach County,
694 So.2d 856 (4DCA 1997)50
Stevens v Osuna,
877 F.3d 1293 (11th Cir. 2017)35
Stump v. Sparkman,
435 U.S. 349 (1978)27
Tannenbaum v United States,
148 F. 3d 1262, 1263 (11th Cir. 1998)15
USA v. Ferreira,
13 How. 40, 51-52 (1852)23,24
USA v. Griggs,
240 F.3d 974 (11th Cir. 2001)31
USA v Zapata,
139 F.3d 1355, 1357 (11th Cir. 1998)22
CONSTITUTIONS
Art. V §8 Florida Constitution28
14th Amendment15,45,46
REGULATIONS
28-106.104(3) FAC29
28-106.214(1) FAC29,30
RULES
Local Rule 28-1(c) 11th Cir. R.ii
Local Rule 5.7 USFLND18,19
Rule 4(a)(4)(A) Fed. R. App. P.1
Rule 28(d) Fed. R. App. P.ix
Rule 34(a) Fed. R. App. P.ii
Rule 41(a) Fed. R. Civ. P.12
Rule 72(b) Fed. R. Civ. P.11
FEDERAL STATUTES
28 USC §45546
28 USC §63624
28 USC §12911
28 USC §12941
28 USC §13311
42 USC §19831,2,10,12,18,32
Title VII18,38
STATE STATUTES
§20.22 FS37
§27.0061 FS29
§28.13 FS29
§90.201 FS8
§90.202 FS12
§120.569 FS3,30
§120.57 FS30,38
§120.65 FS29
§760.11(1),(7) FS3
§768 FS12
§837.06 FS23
§843 FS23
§918 FS23,26
MISCELLANEOUS
Barron’s Dictionary of Legal Terms
Gifis, 5th Edition (2016)39
Chapter 4 RRTFB28
Pro Se 15 (Rev. 12/16)11
Rule 4-1-1 RRTFB28
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.). Appellee, Hon. E. Gary Early, was the Defendant below; and will be 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
The District Court had jurisdiction over this matter under 42 USC §1983 (by virtue of 28 USC §1331 (federal question jurisdiction)). On September 29, 2022, the LT entered final judgment dismissing Civilian X’s Complaint on the grounds of absolute judicial immunity. On October 25, 2022, Civilian X filed a timely notice of appeal (tolled by Rule 4(a)(4)(A)(iv)-(vi) Fed. R. App. P.). Thus, this Court has jurisdiction over this appeal under 28 USC §1291 (also see 28 USC §1294(1)).
STATEMENT OF THE ISSUES ON APPEAL
I. Whether the LT erred by refusing to allow complaint amendment.
II. Whether district courts can adopt magistrate rulings which are based on a false premise.
III. Whether clerical tasks are immune from civil prosecution if performed by judges.
IV. Whether ministerial, administrative acts are immune from civil prosecution if performed by judges.
V. Whether a proceeding can fail to comport with the essential requirements of law.
VI. Whether a district court can mutilate a party’s pivotal motion in order to deny it.
VII. Whether the LT erred in dismissing Appellant’s declaratory relief claim.
STATEMENT OF THE CASE
Overview
1. This is a civil rights case (42 USC §1983) between a civilian (Appellant-Civilian X) and a state hearing officer (Appellee-Judge Y). Civilian X charged Judge Y with violating Civilian X’s constitutional rights while Judge Y operated under color of state law.
2. Judge Y, a Florida public official, was an Administrative Law Judge (“ALJ”) at all times material hereto. The two most prominent acts that Civilian X charged him with were (a) destroying evidence and (b) committing perjury.
3. In order to understand how/why the two parties had occasion to interact, we must first review the preceding dispute. An employment discrimination lawsuit between Civilian X and Allstate Insurance Company (“Allstate”).
Impetus for Appellant-Appellee Interaction (Civilian X v Allstate)
4. On June 30, 2017, Civilian X filed an employment discrimination complaint with the FCHR. Pursuant to §760.11(1) FS, he alleged that his former employer (Allstate) had violated his civil rights on the basis of race and sex (see [A0039]).
5. On September 8, 2017, Allstate denied both allegations (see [A0041]). Stating that it fired Civilian X for a legitimate reason. Specifically, because he had failed an actuarial exam (see [A0043]) (highlights added):
“[Civilian X] was terminated solely because he failed his [FSA] exam.”
- Allstate Insurance Company | 9/8/17 | [A0043]
6. On December 15, 2017, the FCHR concluded its investigation. Notably affirming that race and sex were the basis of Civilian X’s complaint (see [A0045]).
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 [A0047]). 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:
a. Unwanted date requests [A0200], racist dolls [A0203], racist characterizations [A0202]-[A0203];
b. Cursing at Plaintiff for buying a condolence card [A0203];
c. Death threats; smear campaigns; lethal attacks. [A0209]
10. Importantly, Allstate made it known that many of its other employees had also failed exams. Yet, Allstate never fired any of them. This was the ‘smoking gun’ for proving that Allstate was guilty of discriminating against Civilian X.
11. Moreover, at the hearing, three other revelations were cementing:
a. Allstate granted the work-from-home privilege to its other employees. An accommodation it always denied to Civilian X. [A0210]
b. Allstate made Civilian X pay $1,025 for an actuarial exam fee; a payment it never required from any of its other employees. [A0210]
c. Allstate paid Civilian X an annual salary that was significantly lower than his similarly-situated comparators.
12. These core facts rendered Civilian X’s lawsuit (against Allstate) a textbook case of employment discrimination. One which – unfortunately – ran counter to widespread propaganda (as foretold by the Ku Klux Klan itself; and its progenies).
13. Faced with these probative facts, Judge Y went on the attack.
Judge Y’s Unlawful Conduct: (A) Spoliation of Evidence
14. On November 30, 2018, during the moments in which the payment disparity was being revealed at trial (see ¶11b, supra), Judge Y ordered Civilian X to cease questioning. [A0027]
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. [A0028]
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. [A0028]
a. It must be noted that DOAH’s clerk told Civilian X (over the phone) that Judge Y was the person who scanned/photocopied the transcript. A task, of course, which non-judges primarily complete [A0228][A0295]-[A220].
b. It is also important to note that prior to this date, Civilian X had never requested a hearing transcript on his case. [A0228]
i. Civilian X suspected that Judge Y knew this, and was preying on Civilian X’s novice (X was pro se).
17. Given these circumstances Judge Y willfully and knowingly hid material evidence. [A0028]
Judge Y’s Unlawful Conduct: (B) Perjury
18. Judge Y took it one step further, though, by making a wholesale removal of Civilian X’s sex discrimination charge.
19. On April 19, 2019, Judge Y entered his Recommended Order (“RO”).
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 [A0049]-[A0050]).
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 [A0047]) (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””
- Judge Y | 4/18/19 | [A0052]
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.
a. He did so in his original charge (6/30/17, see ¶4);
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)
25. Nevertheless, the force and effect of Judge Y’s statement made the FCHR change its tune.
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 [A0054]); and adopted Judge Y’s ruling.
27. Judge Y’s lie had its intended effect.
28. Now, it is important to recognize that Judge Y knew he was lying.
Judge Y’s Knowledge of the Truth
29. Prior to authoring his RO, Judge Y deliberately acknowledged that the sex discrimination charge was in Civilian X’s originating complaint. [A0029]-[A0030]
30. On February 6, 2019, Allstate moved Judge Y to take official recognition of the FCHR’s Determination (under §90.201 FS).2/
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.”
- The FCHR | 12/15/17 | [A0045]
32. On February 18, 2019, Judge Y granted the motion [A0188]. 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: No Reasonable Cause, and of the Determination: No Reasonable Cause, both of which were issued by the Florida Commission on Human Relations on December 15, 2017. Those documents provided the point of entry to [Civilian X] for this proceeding.”
- Judge Y | 2/18/19 | [A0189]
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).
a. Note: another case which sought monetary damages was/is the federal lawsuit Civilian X filed against Allstate in 2020 [A0197]. A suit that continues to this day [A0265].
Ultimate Facts on Appellee’s Unlawful Conduct Against Appellant
35. Judge Y broke the law in his quest to deny Civilian X relief. Judge Y:
a. hid evidence (see ¶14-17); and
b. committed perjury (see ¶18-34).
36. Judge Y was not performing a judicial function when he scanned/photocopied the case’s transcript (¶16a).
37. Judge Y did not have authority to change Plaintiff’s charge of discrimination; only the FCHR had such jurisdiction (see [A0183], [A0192]). It was also a non-judicial act.
Immediate Procedural History
38. Given the harm that Judge Y’s unlawful conduct inflicted, Civilian X filed civil rights charges at USFLND - on February 16, 2021.
39. Six days later, the LT told Civilian X that it could not accept his complaint because it did not have a handwritten signature (instead, it had an electronic one) (highlights added):
“[Civilian X], proceeding pro se, sought to initiate this case by submitting a civil rights complaint under 42 U.S.C. §1983, ECF No. 1, and an application for proceeding without payment of the filing fee, ECF No. 2. Neither of those documents can be addressed at this time because they are not properly signed.”
- USFLND | 2/22/21 | [A0063]
40. In that same order, the LT told Civilian X to resolve the filing fee. Either by paying or by requesting indigent status. Civilian X ended up paying the fee.
41. On April 6, 2021, the LT processed Civilian X’s filing fee (see [A0067]). Civilian X also returned a manually-signed duplicate of his original complaint.
a. Out of deference for the LT’s order, he made no other changes to his complaint.
42. Three days later, however, the LT’s magistrate entered a Report & Recommendation (“R&R”); requesting a full dismissal of Civilian X’s complaint against Judge Y [A0073].
a. Note: in a simultaneously filed order, the magistrate acknowledged that Civilian X paid the filing fee:
“The docket also shows that [Civilian X] has now paid the $402.00 filing fee.”
- USFLND | 4/9/21 | [A0070]
43. The R&R also led off with a false statement. The magistrate wrote “[Civilian X] was required to submit his amended complaint “on the form used in this Court”” [A0074]. However, the LT never directed Civilian X to use the court-issued complaint form. It only mentioned the application to proceed in forma pauperis:
“Moreover, Plaintiff’s prior motion, ECF No. 2 [forma pauperis], was not on the form used in this Court”
- USFLND | 2/22/21 | [A0064]
“1. The Clerk of Court shall forward to Plaintiff the form used in this Court for requesting leave to proceed in forma pauperis.
2. Plaintiff shall have until March 22, 2021, to file an amended civil rights complaint, which contains his original signature, and an amended in forma pauperis motion on the form provided to him with this Order.”
- USFLND | 2/22/21 | [A0065]
44. the LT’s Clerk recognized this, too. As she never mailed a court-issued civil rights complaint form (Pro Se 15). She only sent Civilian X the court-issued form for leave to proceed in forma pauperis. And – of course – Civilian X actually paid the fee (¶42a supra).
45. The R&R also recommended dismissal on the basis of absolute judicial immunity.
46. Thus, on April 28, 2021, Civilian X filed his written objections to the R&R (Rule 72(b) Fed. R. Civ. P.). Doing so on the grounds of clear error, lack of authority, lack of immunity, and more.
47. On April 29, 2021, unfortunately, the District Court entered Final Judgment; adopting the R&R’s dismissal of Civilian X’s complaint [A0098].
48. Neither the R&R nor the Final Judgment cited a law/statute/rule permitting it to dismiss Civilian X’s paid complaint.
49. Similarly, neither order even declared whether the dismissal was with or without prejudice.
50. It must also be noted that the defendant below (ie, Judge Y) had yet to appear.
51. Likewise, at no point during the proceedings below did any party consent to the magistrate’s involvement.
52. Given the procedural circumstances, Civilian X filed identical charges in state court (under §768 FS, 42 USC §1983); believing that the case below had been dismissed without prejudice (Rule 41(a) Fed. R. Civ. P.). [A0220]
a. Out of an abundance of caution, Civilian X also appealed.
53. On June 23, 2021, the state court entered default against Judge Y because of his failure to contest the charges. [A0259]
a. Charges that Civilian X has steadfastly explained are indisputable.
i. Judge Y perjured himself, and it is public record (ie, not susceptible to dispute “because [it is] capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned” - §90.202 FS).
54. On December 30, 2021, this Court overturned the LT’s original dismissal (¶52a, supra). The following day (12/31/21), Civilian X amended his complaint (“Operating Complaint”). [A0114]
55. Upon a duly served summons, Judge Y made his appearance on March 11, 2022. Doing so via a motion to dismiss {#34}.
56. On April 7, 2022, this Court also designated this case to be one of “first impression”. Meaning that this Circuit has never seen a judge who: (a) destroyed evidence (¶14-17, supra); and/or (b) committed perjury (¶18-34, supra).
57. Due to subsequent actions below, Civilian X sought to amend his Operating Complaint {#45}. The LT, however, denied his request; stating that his amendment was too long {#50} [A0175].
a. Contemporaneous to Civilian X’s request to amend was his Motion for Judicial Notice; which the LT mutilated before denying {#49}. [A0170]
58. Under that advisement, Civilian X shortened his amendment by using the court-issued civil complaint form {#53}.3/ The LT, however, denied Civilian X’s second request; explaining that his amendment was too short {#63}. [A0177]
a. It must also be noted that - throughout the case below – Civilian X asked the LT to grant him use of electronic filing; making a total of three requests. None of which were opposed.
i. Civilian X’s first request was unopposed {#8}, because Judge Y had yet to appear.
ii. Civilian X’s second request was explicitly unopposed {#38}, because Judge Y relayed that fact. The same can be said about Civilian X’s third request {#61}.
Judge Y, on the other hand, always had access to eFiling. Civilian X never did.
59. Nevertheless, a month later (on July 13, 2022), the LT authored a recommended order of dismissal {#66}. Within days of receiving it, Civilian X submitted his objections {#67}. Ultimately, the LT granted the magistrate’s recommendation {#68}, and this appeal followed.
60. Thus, given the facts, the principles of logic & fairness, the law, precedent, justice, and the parties’ conjoined positions, Appellant will hereby present the reasons why this Honorable Court is in great position to reverse the judgment below.
STANDARD OF REVIEW
61. A district court’s dismissal of a case is reviewed de novo (see Castillo v Allegro, 603 F. App’x. 913, 915 (11th Cir. 2015)). Under that standard, the Court must accept all factual allegations in the Complaint as true and make all inferences in the light most favorable to the plaintiff (ie, Civilian X) (see Chaparro v. Carnival Corp., 693 F. 3d 1333, 1335 (11th Cir. 2012)). Plus, courts must liberally construe pro se pleadings (see Tannenbaum v United States, 148 F. 3d 1262, 1263 (11th Cir. 1998)).
SUMMARY OF ARGUMENTS
62. The LT gunbutted Civilian X, covered for Judge Y, misfired, and harmed jurisprudence along the way. Plus, it performed its act on a stage filled with smoke & mirrors; blinding the auditorium from reality.
63. More definitively, the LT abused its discretion by not letting Civilian X amend his complaint (‘gunbutted’). It covered for Judge Y by rewriting the charges levied against him, and its claims of immunity were incorrect (‘misfired’). Moreover, the lower court’s actions defiled the constitution’s guarantees of due process (14th Amendment).
64. Plus, the LT failed to comport with the essential requirements of law. It also failed to comport with mandated precedent (eg, declaratory relief, first impression)..
65. Thus, this Court of Appeals should resolve the mechanical defects, rebuke the wayward shooter, and remand the entire matter to the lower court. Where Civilian X and Judge Y can present the crimes to a jury of their peers.
ISSUE I
The District Court Abused its Discretion by
Not Letting Civilian X Amend his Complaint
‘gunbutting’
OVERVIEW I
66. The Lower Tribunal erred when it dismissed Civilian X’s complaint without letting him amend it.
STANDARD OF REVIEW I
67. Fortunately, this appellate court has the power to remand this issue back, because dismissals without leave to amend are reviewed for abuse of discretion:
“We review for abuse of discretion a district court's denial of a motion to amend. Henson v. Columbus Bank Trust Co., 770 F.2d 1566, 1574 (11th Cir. 1985)”
- Bryant v Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)
68. As the 11th Circuit established in the 2005 case of Guideone, discretion is abused when a lower court goes outside the bounds of possible choices (highlights added):
“When we say that a decision is discretionary... we do not mean that the district court may do whatever pleases it. The phrase means instead that the court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law."”
- Guideone v. Old Cutler, 420 F.3d 1317 (11th Cir. 2005)
ARGUMENT I
69. The LT – in the instant case – went outside the boundaries of discretion [and non-discretion] when it dismissed without allowing Civilian X’s requested amendment. Objectively, these boundary lines are set in place by the LT’s local rules.
70. Local Rule 5.7(B) USFLND requires complaints to fall within the LT’s 25-page limit (highlights added):
“A petition, motion, or complaint, together with any memorandum, must not exceed 25 pages, unless the Court authorizes it.”
- Local Rule 5.7(B) USFLND
This 25-page maximum, therefore, constitutes the upper bound.
71. Similarly, Local Rule 5.7(A) USFLND requires civil rights complaints to be written on a court-issued form (highlights added):3/
“(A) Required Forms. A party not represented by an attorney must file any of these only on a form available without charge from the Clerk... a complaint in a civil-rights case. A case is a civil-rights case if it asserts a claim under... for example, 42 U.S.C. §1983 or the Civil Rights Act of 1964.”
- Local Rule 5.7(A) USFLND
72. It is uncontroverted that the LT denied both of Civilian X’s motions to amend (¶57-58, supra). And it went outside its local boundaries to do so.
73. The LT denied Civilian X’s first motion to amend because his complaint was too long (highlights added):
“First, the proposed pleading is 100 pages in length and is comprised of 226 numbered paragraphs with subparts. ECF No. 45-1. That violates Local Rule 5.7 which provides that a “complaint, together with any memorandum, must not exceed 25 pages, unless the Court authorizes it.” N.D. Fla. Loc. R. 5.7(B). [Civilian X]’s motion to amend should be denied because exceeding the page limitation has not been authorized.”
- Lower Tribunal | 4/19/22 | {#50} | [A0176]
74. The LT denied Civilian X’s second motion to amend because his complaint was too short:
“One [category of impermissible “shotgun” pleadings] includes complaints that are [vague and fail to allocate charges to specific defendants]. [Civilian X]’s complaint suffers from both defects... In sum, [Civilian X]’s allegations are conclusions that lack any factual detail that would allow his claims to cross the line from possible to plausible.”
- Lower Tribunal | 6/6/22 | {#63} | [A0178]- [A0179]
75. However, Civilian X’s second attempted amendment was only ‘too short’ because he followed the Court’s own local rule (¶71).
CONCLUSION I
76. Thus, by effectively punishing Civilian X for following the LT’s rules & orders, the LT abused its own discretion. But for this abuse, many of the pivotal/faulty attacks (which the LT levied against Civilian X’s complaint) would be moot.
a. For instance, the LT’s mischaracterization of Civilian X’s complaint (please see Issue II) would have been nullified had Civilian X been allowed to explicitly state its falsehood.
77. Therefore, this Court is in prime position to remand this case back. Because the LT’s abusive gunbutting laid a staggering blow to its subsequent falsified munitions and misfires (Issue II, and Issues III-IV; respectively).
ISSUE II
The District Court Erred by
Adopting an Incorrect Stance
‘false ammo’
OVERVIEW II
78. The District Court erred when it adopted the magistrate’s R&R, because that recommendation was based on a false premise.
STANDARD OF REVIEW II
79. District Court decisions based on false notions are reviewed for clear error (see United States v Zapata, 139 F.3d 1355, 1357 (11th Cir. 1998)).
“ground of error is usually "available" on direct appeal when its merits can be reviewed without further factual development.”
- Mills v US, 36 F.3d 1052 (11th Cir. 1994)
ARGUMENT II
80. The record below is clear: Civilian X did not complain about Judge Y’s cessation order (instead, he complained about Judge Y’s evidence destruction and perjury) (¶14-34). Yet the LT claimed that Civilian X did, and used that mischaracterization as the basis for dismissal.
81. The magistrate said the following:
“[Civilian X] complains about [Judge Y]’s order directing [Civilian X] to cease a certain line of questioning.”
- Lower Tribunal | 7/13/22 | {#66} | [A0181]
82. The magistrate’s statement, of course, is false.
83. Civilian X did not complain about Judge Y’s cessation order. He complained about Judge Y’s evidence destruction – which happened months after the cessation order. Civilian X’s complaint made this clear on multiple occasions (highlights added):
“Defendant’s Unlawful Conduct: (A) Spoliation of Evidence”
- The Complaint | 1/3/22 | {#26} | [A0130]
“48. Defendant broke the law in his quest to deny Plaintiff relief. Defendant:
a. hid evidence (see ¶18-21);
b. committed perjury (see ¶22-38); and...”
- The Complaint | 1/3/22 | {#26} | [A0137]
“55. Defendant [violated Plaintiff’s constitutional rights] via evidence destruction (§843 FS, §918 FS), perjury (§837.06 FS), and...”
- The Complaint | 1/3/22 | {#26} | [A0138]
“66. Defendant [violated Plaintiff’s constitutional rights] when he (a) suppressed crucial evidence (¶18-21), perjury (§837.06 FS), and...”
- The Complaint | 1/3/22 | {#26} | [A0140]
“74. Defendant unleashed his repertoire when he deprived Plaintiff of a full & fair opportunity to litigate his underlying case in Florida. Conduct which included – among other things – evidence destruction (¶18-21), perjury (¶22-38), and bribery (¶39-47)”
- The Complaint | 1/3/22 | {#26} | [A0142]
“82. The people of Florida never conferred special power upon Defendant to manage trial transcripts (¶18-21). Moreover, the people prohibited him from destroying evidence (§843/§918 FS).”
- The Complaint | 1/3/22 | {#26} | [A0143]
84. At no point, importantly, did Civilian X ever contend that he was injured by Judge Y’s cessation order. Yet this false contention is what the magistrate sold to the LT.
85. Thus, in submitting false information, the magistrate “hijacked” Civilian X’s cause. In Limone, the 1st Circuit deemed this to be error:
“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.”
- Limone v Condon, 372 F.3d 39 (1st Cir. 2004)
86. Then, the LT - pursuant to 28 USC §636(b)(1)(C) - failed to “recommit the matter to the magistrate judge with instructions” to correct the misrepresentations. That failure was clear error, and this Court has the power to reverse.
CONCLUSION II
87. Briefly put, the LT erred when it filled the false ammo (ie, the magistrate’s false proffer) with final input. This Court can reverse on that basis; especially since that input led to a misfire regarding judicial immunity (Issue III, infra).
ISSUE III
Judge Y Lacks Immunity for his Clerical Misconduct
(Evidence Destruction)
‘misfire #1’
OVERVIEW III
88. Judge Y infringed on Civilian X’s constitutional right to due process when he hid evidence (in violation of §918 FS). He did so by removing a crucial transcript page from the batch that he scanned (¶14-17, supra).
89. Photocopying transcripts, of course, is a clerical task. In other words, it is not a judicial one. Judge Y committed a non-judicial act to mute Civilian X’s prima facie proof of the underlying case (ie, Makere v Allstate).
90. Thus, the District Court erred by cloaking Judge Y with judicial immunity.
STANDARD OF REVIEW III
91. Reversal on the grounds of immunity is available to this appellate court because such a basis is reviewed de novo:
“Claims of absolute immunity present questions of law that we review de novo.” - Mikko v Atlanta, 857 F.3d 1136 (11th Cir. 2017)
Plus, the Lower Tribunal proffered this ground in its order of dismissal (which is also subject to de novo review).
ARGUMENT III
92. It is well-established that absolute judicial immunity only attaches if the officer committed a judicial act within his/her jurisdiction (highlights added):
“A judge is absolutely immune from a section 1983 suit for damages only for (a) judicial acts (b) for which the judge has at least a semblance of subject matter jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)”
- Lerwill v Joslin, 712 F.2d 435, 438 (1th Cir. 1983)
93. In Dykes, this Honorable Court held that it must consider four (4) factors when determining whether the misconduct was a “judicial act” (highlights added):
“In Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981), the court focused on the following factors in determining that a judge's conduct constituted a judicial act:
(1) the precise act complained of... is a normal judicial function; (2) the events involved occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity.”
- Dykes v. Hosemann, 776 F.2d 942, 945 (11th Cir. 1985)
94. In the instant case – when it comes to the hidden transcript page – all four factors fall in Civilian X’s favor.
Factor One: Normal Judicial Function
95. Photocopying transcript pages is not a judicial act.
96. For starters, it does not require legal knowledge, discretion, or judgment.
a. That first element - as Art. V. §8 Fla. Const. puts it - is mandatory for Florida judgeship (“[a judge must be] a member of the bar of Florida”). Rule 4-1-1 RRTFB goes on to say that “legal knowledge” is a key element in a judge’s competence.
b. The Preamble to Chapter 4 RRTFB states that discretion is another important characteristic of judicial work.
c. All three of these elements come together to help determine whether a judge’s behavior is judicial (highlights added):
“The powers conferred by these acts of Congress upon the judge as well as the Secretary are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them.”
- USA v. Ferreira, 13 How. 40, 51-52 (1852)
97. Ferreira, of course, was a case that distinguished administrative functions against judicial ones. Pursuant to Ferreira, a clerical task like scanning paper would be classified as “alien” to the “legitimate functions of a judge”:
“The duties to be performed are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws.”
- USA v. Ferreira, 13 How. 40, 51-52 (1852)
98. Such administrative jobs are often completed by court staff:
“Some members of a judge's staff aid in the performance of adjudicative functions”
- Forrester v White, 484 US 219 (1988)
99. In Judge Y’s circumstances, Florida legislature deemed the maintenance of transcript pages as a clerical task primarily handled by non-judges.
a. §27.0061 FS states that court reporters are responsible for transcripts.
b. §28.13 FS goes on to say that clerks “must maintain all papers”, and ought not “permit any attorney or other person” to interfere.
c. §120.65 FS, in contrast, creates no such obligation on administrative law judges (ie, Judge Y).
100. In fact, DOAH itself (ie, Judge Y’s employer), maintains that handling paperwork is a non-judicial task (for non-judges):
a. 28-106.104(3) FAC states that the division clerk (ie, not any judge) handles all documents received.
b. 28-106.214(1) FAC goes further by stating that the preservation (ie, non-spoliation) of trial transcripts is not even within DOAH’s jurisdiction. Rather, it is up to the administrative agencies that submit cases to DOAH:
“Responsibility for preserving the testimony at final hearings shall be that of the agency transmitting the petition to the Division of Administrative Hearings pursuant to Sections 120.569 and 120.57, F.S.,”
- 28-106.214(1) FAC
101. In practical application, public record shows that Florida appellate courts [A0299], litigants [A0268], and government staff [A0297], all expect transcript-handling to be completed by non-judges.
102. Thus, constitutions, bar rules, Supreme Court precedent, statutory authority, state regulations, history, and common logic converge to show that Judge Y was not performing a judicial act when he photocopied/hid the trial transcript. On that factor alone, this Court should deny absolute judicial immunity.
Factor Two: Location of Events
103. The second factor falls in Civilian X’s favor as well. The event-in-controversy (ie, spoliation of evidence) neither occurred in the judge’s chambers nor in open court. It took place in the assistant’s office (see ¶16a, supra).
104. The assistant’s office, of course, is an administrative setting, and this Circuit states that actions in administrative settings are non-judicial (highlights added):
“fee determinations are made in an administrative setting rather than in an adversarial posture;”
“...”
“we concluded that fee determinations made by district courts pursuant to the § 3006A(d) of the Criminal Justice Act (CJA) were administrative in nature and therefore not subject to appeal as final decisions” - USA v. Griggs, 240 F.3d 974 (11th Cir. 2001)
105. Thus, since this Court has already factored in an “administrative setting” in determining a controversial act as being “administrative in nature”, it should do so again (in the instant case).
Factor Three: Centered Around a Case
106. The third factor – which is perhaps a bit more assailable – also falls in Civilian X’s favor. The act in controversy (ie, hiding transcript pages instead of scanning them) is not “centered” around a case. Xeroxing pages is a nondescript task that is performed without judgment or discretion (¶96-97, supra).
Factor Four: Immediacy of the Event
107. Lastly, the fourth factor favors Civilian X’s argument, too. The matter regarding the destruction of evidence did not happen directly/immediately out of a visit to the judge. It occurred roughly 6-weeks after the parties stood before Judge Y at trial.
108. As detailed in the statement of facts, the testimony-at-hand was proffered in November 2018 (¶14, supra). Yet the incomplete transcript pages were not produced until January 2019 (¶16).
109. In other words, the spoliation of evidence was not the byproduct of a hotly-contested judicial matter. It was the desired outcome of Judge Y’s cold plan to hide Civilian X’s prima facie evidence.
CONCLUSION III
110. In short, Judge Y’s spoliation of evidence was not a judicial act. It was an administrative act; one which was/is not prone to judicial immunity. Had any of the administrative assistants or clerks done what Judge Y did (which they were statutorily poised to do) they would be liable under 42 USC §1983:
“there may be somewhat less reason to cloak judges with absolute immunity from such suits than there would be to protect such other officials.”
- Forrester v White, 484 US 219 (1988)
111. So, the District Court misfired in its first attempt to douse Judge Y in a cloak of invincibility. An unattachable cover which would have allowed Judge Y to be immune from transgressions that no one else would be immune to.
112. Thus, this Appellate Court should reverse & remand on this issue. Especially considering the second misfire that the LT made (Issue IV, infra).
ISSUE IV
Judge Y Lacks Immunity for his Non-Judicial Transgressions
(perjury)
‘misfire #2’
OVERVIEW IV
113. The Lower Tribunal also erred when it donned the cloak of judicial immunity on Judge Y (Appellee). Of the unlawful conduct Civilian X detailed in his complaint (¶14-37), Judge Y’s act of perjury was not a judicial one. Thus, immunity does not attach.
STANDARD OF REVIEW IV
114. Of course, as mentioned earlier, trial court dismissals are reviewed de novo (¶61, supra). And more specific to this issue, proffers of immunity are also reviewed de novo (¶91, supra).
ARGUMENT IV
115. As this Court foretold, the doctrine is designed to protect the integrity of the court:
“The Court stressed that such immunity was essential to protect the integrity of the judicial process... ...we bear in mind that immunity status is for the benefit of the public as well as for the individual concerned.”
- Stevens v Osuna, 877 F.3d 1293 (11th Cir. 2017)
Such protection is there to maintain the functions that the public relies:
“This provision of law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”
- Bradley v Fisher, 80 US 335
116. The US Supreme Court stressed that Courts must look at the acts in question, especially since judges regularly handle non-judicial tasks (highlights added):
“Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches... This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.”
- Forrester v White, 484 US 219 (1988)
117. Thus, Civilian X must show that Judge Y’s perjury was committed during a non-judicial act. The act in controversy, of course, was Judge Y changing Civilian X’s employment discrimination complaint. One from a basis of race & sex into one on the basis of race only [see ¶18-37).
118. Civilian X will present this in two parts. In part one, he will show that DOAH’s quasi-judicial officers (eg, Judge Y) have never had authority to change the basis of a discrimination charge. Then, in part two, he will show that the act was administrative/ministerial.
Part One: Judge Y Had No Jurisdiction Over Discrimination Bases
119. DOAH is an administrative agency created by §20.22 FS:
“There is created a Department of Management Services... [(2)...(f)] Division of Administrative Hearings.”
- §20.22 FS (2020)
120. As such, Florida’s Supreme Court confirmed that administrative agencies like DOAH have limited powers (highlights added):
“Administrative authorities are creatures of statute and have only such powers as the statute confers on them. Their powers must be exercised in accordance with the statute bestowing such powers, and they can act only in the mode prescribed by statute. If a power or duty is imposed upon him jointly or as a body, it may not be exercised by them acting individually and separately. They cannot rightfully dispense with any of the essential forms of proceedings which the legislature has prescribed for the purpose of investing them with power to act. A commission may not assert the general power given it and at the same time disregard the essential conditions imposed upon its exercise. Officers must obey a law found upon the statute books until in a proper proceeding its constitutionality is judicially passed upon.”
- Edgerton v International, 89 So. 2d 488 (1956)
121. So, while Judge Y had the prescribed “general power” to perform a finding of fact, he did not have the essential power to change what was being searched. DOAH has said so itself, in fact:
“the Division does not have jurisdiction of any new charges added into the Petition for Relief or that were presented for the first time at hearing if they could have been raised in the Charge of Discrimination. New or different types of discrimination cannot be alleged in the Petition for Relief or at the disputed-fact hearing under Section 120.57(1), Florida Statutes, unless they have been alleged in the Charge of Discrimination.”
- Cox v Univ of Florida, DOAH 03-4672 | [A0207]
122. Federal Courts have said the same thing about unconferred power from the EEOC (the federal equivalent to Florida’s FCHR):
“Federal courts do not have subject matter jurisdiction to hear Title VII claims unless the claimant explicitly files the claim in an EEOC charge or the claim can reasonably be expected to grow out of the EEOC charge.”
- Abeita v TransAmerica, 159 F. 3d 246 (6th Cir. 1998)
The above affirmation fits the instant case, because DOAH – for the purposes of employment discrimination cases – stands in the same shoes Federal Courts do (ie, adjudicating FCHR/EEOC complaints).
123. Thus, case law proves that Judge Y had no power to change Civilian X’s discrimination complaint.
124. Statutory law, importantly, does the same (highlights added):
“(k) The presiding officer shall complete and submit to the agency and all parties a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty” - §120.57(1)(k) FS
125. As the above quote shows, Florida makes no provisions for a “Statement of the Issues” or a “Preliminary Statement”. Neither one of these sections were one of Judge Y’s specially conferred powers. In other words, Judge Y had no statutory authority to issue them.
126. Importantly, the legislature excluded those two “statements”; and did so intentionally. The Doctrine of Expressio Unius Est Exclusio Alterius prevails:
“Lat.: the expression of one thing is the exclusion of another. In construing statutes under this maxim, mention of one thing within the statute is said to imply the exclusion of another thing not mentioned.” - Barron’s Legal Dictionary, Gifis, 5th Edition (2016)
127. These two “statements”, crucially, were the only two “statements” that Civilian X complained of (¶20-21, supra).
128. Therefore, both case law and statutory law prove (individually & together) that Judge Y had no power to change Civilian X’s discrimination complaint. Now, we must review how doing so was a non-judicial act.
Part Two: Perjury on a Ministerial, Non-Judicial Act
129. The 7th Circuit has established that the act-in-question is a condition precedent (not an item of subject matter jurisdiction):
“We must consider whether the requirement that the allegations in a complaint be encompassed within the corresponding EEOC charge relates to subject matter jurisdiction or whether it is more in the nature of a condition precedent. We conclude that the latter is the case... Consequently, the requirement that the scope of the EEOC charge limit the scope of the subsequent complaint is in the nature of a condition precedent with which litigants must comply rather than constituting a component of subject matter jurisdiction.”
- Babrocky v. Jewel, 773 F.2d 857 (7th Cir. 1985)
130. Conditions precedent (or as Florida’s 4th District Court of Appeals put it: “legal requirements”) cannot be altered when relayed:
“We specifically held in Narco Realty, Inc. that where all of the legal requirements for platting land have been met there is no residual discretion to refuse plat approval and mandamus will lie. The same reasoning applies to approval of site plans. ... No element of discretion remains once the legal requirements have been met.”
- Lauderdale Lakes v. Corn, 427 So.2d 239 (FL 4DCA 1983)
131. So, sans discretion the acceptance of conditions precedent becomes an administrative act (highlights added):
““We reject the County's construction that those provisions of the statutes give the County unbridled discretion to deny approval... “Thus, while public policy requires municipal control of such development, nevertheless, the authority of a town to deny a landowner the right to develop his property by refusing to approve the plat of such development is, by statute, made to rest upon specific standards of a statute or implementing ordinances. Thereafter, the approval or disapproval of the plat on the basis of controlling standards becomes an administrative act.””
- Broward County v. Narco, 359 So.2d 509 (FL 4DCA 1978)
132. In the instant case, Judge Y was granted neither the power nor the discretion to change the basis of Civilian X’s FCHR Complaint (¶119-128, supra). All he was allowed to do was recite the conditions precedent; a ministerial act (highlights added):
“It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent.
Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. It often is given to county commissioners, or supervisors, or assessors. In former times, the selection was made by the sheriff. In such cases, it surely is not a judicial act, in any such sense as is contended for here. It is merely a ministerial act, as much so as the act of a sheriff holding an execution, in determining upon what piece of property he will make a levy, or the act of a roadmaster in selecting laborers to work upon the roads.”
- Ex Parte Virginia, 100 US 339
133. Case law shows that Judge Y’s ministerial recitation of the conditions precedent was a non-judicial act. Instead, it was an administrative task; requiring no judgement; no discretion. A task which anyone could have performed. Had ‘anyone’ else performed it, they would be liable (¶110).
Additional Point
134. As an added note, the fact that Judge Y perjured himself while committing that act stripped him of all immunity (highlights added):
“If the act which the [state officer] seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”
- Ex Parte Young, 209 US 123 (1908)
CONCLUSION IV
135. In summary, Judge Y had no power to take charges off of Civilian X's FCHR complaint.
a. He could only accept Civilian X’s FCHR complaint as is.
i. Reciting the bases was a non-judicial, ministerial act.
136. Plus, Judge Y had no statutory power to issue those complained-of statements (¶19-20). As such, the perjury that he committed while doing so was infirm for attaching judicial immunity.
137. Onwards, the LT’s misfire was taken on a stage of smoke-&-mirrors; which – as we will see next – is also cause for reversal.
ISSUE V
The Proceeding Below Failed to
Comport with the Essential Requirements of Law
‘smoke & mirrors’
OVERVIEW V
138. The Lower Tribunal’s aforementioned abuses and errors were further invalidated by its departure from the essential requirements of law. A departure that has resulted in a miscarriage of justice; one which this Court has the power to fix.
STANDARD OF REVIEW V
139. Since this type of analysis (of the essential requirements of law) is a pure question of law, this Court can review it de novo (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; (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”
- Haines v. Heggs, 658 So. 2d 523 (Fla. 1995)
ARGUMENT V
140. The record below shows that the LT deprived Civilian X of fundamental rights. Specifically, his 14th Amendment right to equal protection.
141. The LT did that by denying Civilian X access to electronic filing - despite granting Judge Y that access (¶58a, supra). Access that was material.
142. For starters, the disparity in treatment has expressed itself financially. Civilian X – to this date – has spent approximately $200 printing & shipping papers to the LT. Judge Y has spent $0.
143. The disparity in treatment has also expressed itself timewise. Civilian X – to this date – has spent about 25 hours printing & shipping papers to the LT. Judge Y has spent 0 hours doing the same.
a. This disadvantage has been particularly vile, because it has made Civilian X’s efficacy far worse than equilibrium.
144. All three of these injuries (financial, timewise, efficacy) are quantifiable. In fact, Civilian X summed them together in a lawsuit he filed against the LT (itself).
a. The case – Makere v Fitzpatrick (4:22-cv-00315; USFLND) – is on the verge of entering this Court. It focuses on the LT’s discriminatory impedance of Civilian X’s case against Judge Y, as well as the LT’s unconstitutional local rule.
145. That suit revealed further incongruities in the proceeding below. The presiding district judge (Hon. Allen Winsor) failed to recuse himself from the instant case. Despite being named as a defendant in the Makere v Fitzpatrick case.
146. Thus, the LT’s indiscretions graduated into illegalities. 28 USC §455(b) prohibits judges from staying on cases that they have personal interests in.
CONCLUSION V
147. These two ‘irregularities’ (ie, discriminatory treatment defying the 14th amendment, and failure to recuse defying 28 USC §455) have rendered the proceeding below as one which has departed from the essential requirements of law. In other words, the principles of fairness and statutory law were only an illusion at the LT.
148. As such, this Court is well-positioned to denounce the lower proceedings, and remand this case for a fair trial on the merits.
ISSUE VI
The Lower Tribunal’s Actions Violated
Civilian X’s Constitutional Rights
‘harm #1’
OVERVIEW VI
149. The Lower Tribunal mutilated Civilian X’s court document; violating his constitutional right to due process.
STANDARD OF REVIEW VI
150. Constitutional violations are pure questions of law, and therefore receive de novo review (highlights added):
“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.”
- Cooper v. Leatherman, 532 US 42 (2001)
ARGUMENT VI
151. The LT broke the fundamentals of fairness when it mutilated Civilian X’s motion for judicial notice (¶57a). Fundamental fairness, of course, equates to due process (highlights added):
“Due Process in essence means fundamental fairness" - Hampton v. United States, 425 US 484 (1976)
152. In its denial, the LT disclosed that it removed some of Civilian X’s pages, transposed others, and decided that what remained fell short [of the mark needed to support approval] (highlights added):
“Additionally, [Civilian X] has filed a “motion for judicial notice of ten (10) public records.” ECF No. 44. It is unknown whether [Civilian X] properly fastened4 all related documents together when submitting them to the Clerk of Court. Some of the proposed attachments were filed by the Clerk’s Office with the motion, ECF No. 44, and others were entered on the docket with [Civilian X]’s separately filed motion to amend.
“...”
The motion to take judicial notice, ECF No. 44, is denied.”
- Lower Tribunal | 4/18/22 | {#49} | [A0170]
153. Put simply, the LT mutilated Civilian X’s motion in order to deny it (buoyed by its unconstitutional local rule on discriminatory eFiling – ¶144, supra). This violated fundamental fairness.
154. But for this violation, the LT’s subsequent order of dismissal would have been different. This is because items of judicial notice must be included in such evaluations (highlights added):
“In considering the [motion to dismiss], courts should limit their “consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.”” - La Grasta v First Union, 258 F.3d 840 (11th Cir. 2014)
155. Civilian X’s items for judicial notice showed that Judge Y’s evidence destruction and perjury were not covered by judicial immunity {#44}. Therefore, the exclusion of those items – via the LT’s records mutilation – constituted harmful error: “[T]he more appropriate test for an alleged violation of one’s due process rights to a fair hearing would appear to be the harmless error test generally applied in civil cases. An error is harmful where there is a reasonable probability of a different result would have been reached but for the error committed.” - Mills v State, 177 So.3d 984 (1DCA 2015)
156. Of course, reversal is the solution for material/harmful errors:
“Reversal is mandated when a procedural error is material to the fairness of the proceedings” - Schrimsher v Palm Beach County, 694 So.2d 856 (4DCA 1997)
CONCLUSION VI
157. For these fundamental reasons, this Court is similarly well-positioned to reverse the LT’s decision. A reversal that will also restore Civilian X’s pursuit of declaratory relief (Issue VII, infra).
ISSUE VII
The District Court Harmed Civilian X by
Dismissing his Declaratory Relief Claim
‘harm #2’
OVERVIEW VII
158. Last but not least, the Lower Tribunal erred when it dismissed Civilian X’s claim for declaratory relief. A claim that no official is immune from.
STANDARD OF REVIEW VII
159. When a district court dismisses a declaratory relief claim, this Court reviews the decision de novo (highlights added):
“Although the district court has an area of discretion in deciding whether to grant or deny declaratory relief, that discretion should be exercised liberally in favor of granting such relief in order to accomplish the purposes of the Declaratory Judgment Act. The scope of appellate review of the exercise of such discretion is not under an "arbitrary and capricious" standard but allows the appellate court to substitute its judgment for that of the trial court. 6A J. MOORE, W. TAGGART J. WICKER, Moore's Federal Practice, 57.08[2]; McDougald v. Jenson, 786 F.2d 1465 (11th Cir. 1986)."
- Cincinnati v Holbrook, 867 F. 2d 1330 (11th Cir. 1989)
As is well-known – and to define de novo’s technical meaning - when an appellate court “substitutes” the trial court’s rationale with its own then it is performing a de novo review: “Here, as in Scottsdale, we would have affirmed the district court had it reached a different result, and if we were reviewing this matter de novo, we probably would have decided it differently. "By definition, however, under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion differs from a de novo standard of review." In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994)"
- Guideone v. Old Cutler, 420 F.3d 1317 (11th Cir. 2005)
ARGUMENT VII
160. As the record shows, Civilian X sought declaratory relief in the district court [A0024] (“plaintiff seeks declaratory relief...”).
161. Public record also shows that Civilian X has had another federal lawsuit running parallel to the one below (¶34, supra). At the time he sued Judge Y, Civilian X was already several months into that case (against Allstate).
a. That case has seen a Motion in Limine [A0257]. That motion, importantly, dealt entirely with Judge Y’s unlawful conduct (¶14-34).
i. And it was supplemented with the default entered against him by a Florida state court (¶53).
b. In other words, Civilian X has an active case that will be impacted by declaratory relief against Judge Y.
162. Case law empowers this Court to reverse on that ground (highlights added):
“To meet the requirements of the Declaratory Judgment Act there must be a "case of actual controversy", as the Constitution requires for any invocation of federal judicial authority... The case must be "of sufficient immediacy and reality" to warrant declaratory relief."
- Genentech v. Eli Lilly, 998 F. 2d, at 936;
In the instant case, Civilian X satisfies all requirements set out in Genentech. He has an ‘actual case’ that is being ‘immediately’ litigated in ‘real life’.
163. Dismissal is rendered improper once that criteria gets met:
“When there is an actual controversy and a declaratory judgment would settle the legal relations in dispute and afford relief from uncertainty or insecurity, in the usual circumstance the declaratory action is not subject to dismissal."
- Genentech v. Eli Lilly, 998 F. 2d, at 936;
164. This 11th Circuit held that reversal is the solution:
“Here, under traditional federal constitutional principles and under the Declaratory Judgment Act, a "case or controversy" did, in fact, exist when Cincinnati filed its action in the district court. The district court, therefore, was in error when it dismissed the action."
- Cincinnati v Holbrook, 867 F. 2d 1330 (11th Cir. 1989)
CONCLUSION VII
165. Thus, the record and case law are both clear. Civilian X is entitled to sue Judge Y for declaratory relief. The Lower Tribunal harmed him by shooting off that claim, and this appellate court should reverse.
BONUS ISSUE
The Lower Tribunal Erred by
Dismissing a Case of First Impression
FIRST IMPRESSION
166. As a quick bonus argument, the LT defied logic by dismissing a case that this Court deemed to be one of “first impression” (¶56 supra). As Supreme Court precedent has long-established (please see Ashcroft v Iqbal, 556 US 662 (2009); and Bell v Twombly, 550 US 544 (2007)) dismissal is an extreme sanction that is only appropriate when precedent precludes litigation.
167. Given the certified fact that there is no case precedent - for Judge Y’s (a) evidence destruction; and/or (b) perjury - then there is no basis for dismissal.
Hereby debased and debunked lays Appellee’s magical cloak/
And this Court can stand here to give a classic reproach//
----
But for the Lower Tribunal’s falsifications (Issue II), misfires (Issues III-IV), and departures from the essential requirements of law (Issues V-VI), this appeal would not exist. The LT’s other misdeeds (Issue I – complaint amendment; Issue VII – declaratory relief) further displayed its abuse of discretion/law/constitutionality.
WHEREFORE, Appellant (Civilian X) asks this Court to reverse the Lower Tribunal’s judgment; because it was falsified, incorrect, constitutionally violative, harmful, and erroneous.
Dated this 14th day of December 2022.
Respectfully submitted,
/s/ Elias Makere
Elias Makere, FSA, MAAA
Appellant/Plaintiff (“Civilian X”)
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 9,502 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 14th day of December 2022, 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
1/ [A0210] means page 210 from the appendix.
{#55} means docket entry 44 from the lower tribunal.
2/ at DOAH, “official recognition” = judicial notice
3/ Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
Link to Underlying Complaint (HTML, PDF, Video)
| HTML | TextBookDiscrimination.com/Info/Misc/ALJPerjury/Complaint-Amended.html |
| TextBookDiscrimination.com/Files/USFLND/21000096_AAC_20211231_123954.pdf | |
| VIDEO | https://youtu.be/_RaJXFfXOCE |
Electronic Copy (text-searchable, hyperlinked):
TextBookDiscrimination.com/Files/CA11/22013613_ADD_20221212_104431.pdf
TextBookDiscrimination.com/Files/CA11/22013613_IB_20221212_104432.pdf
TextBookDiscrimination.com/Info/Misc/ALJPerjury/OpeningBrief02.html
Charles Schreiber, Jr., Esquire (0843075)
John Bennett
E: Charles.Schreiber@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 32399-1050
(appearing on behalf of Appellee/Defendant/”Judge Y”)
Please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
