UNITED STATES DISTRICT COURT FOR THE SOUTHERNDISTRICT OF NEW YORK

Julian Heicklen
Plaintiff

v.
District Court Case #
08 CV 02457 (JGK)

Jason Toala
Police Officer Shield 27613

John Does 1, 2, and 3
Arresting Police Officers
Patrol Boro Manhattan South Task Force,

Raymond Kelly
New York City Police Commissioner

MEMORANDUM OF LAW IN SUPPORT OF CONTEMPT PROCEEDINGS AGAINST COUNSELS FOR DEFENSE MICHAEL A. CARDOZO AND MAX MCCANN

_____________________
Julian Heicklen, Petitioner
Counsel, Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
Telephone: 814-880-9308

________________
Date


CONTENTS

Page
A. CITATIONS IN THE TEXT____________________________________________________________________________3
B. PERTINENT HISTORY_______________________________________________________________________________4
C. CLAIMS___________________________________________________________________________________________16
D. REMEDIES________________________________________________________________________________________22
E. MOTIONS_________________________________________________________________________________________23
F. AFFIDAVIT OF PLAINTIFF__________________________________________________________________________24
G. CERTIFICATE OF SERVICE_________________________________________________________________________25
H. EXHIBITS_________________________________________________________________________________________26

A. CITATIONS IN THE TEXT

I. Federal Rules of Civil Procedure (FRCP)

Page 8: FRCP  16(f), 37(b)(2)(C), and 41(b)
Page 14: FRCP 56
Page 15: FRCP 16(f), 37(b)(2)(C), and 41(b)
Page 16: FRCP 12 and 12 (a)(2) or (3)
Page 21: RCP 16(f), 37(b)(2)(C), and 41(b)
Page 28: FRCP 56

II. Local civil rules

Page 6: Rule 5.1(a)
Page 14: Rule 56.1
Page 18: Rule 26(a)(1)[(A)(i)
Page 25: Rule 56 (e)(2)

 III. New York State statutes

Page 8: NYCPL #160.50(1)(d)  
Page 11: NYCPLR 30

IV. Evidence not included in the exhibits

1. Summons, Amended Complaint, and Plaintiff interrogatories to discover identities and addresses of John Doe Defendants served on Defendants Toala and Kelly on March 2, 2009
2. DVD video of incident of April 17, 2009
3. Transcript of Conference of July 17, 2009
4. Notice of Motion by Max McCann of July 31, 2009
5. Memorandum of Law to Dismiss or for Summary Judgment by Michael Cardozo and Max McCann of July 31, 2009
6. Notice of Motion by Max McCann of August 10, 2009
7. Memorandum of Law to Stay Discovery by Michael Cardozo and Max McCann of August 10, 2009

B. PERTINENT HISTORY

1. On February 28, 2009, Petitioner sent a cover letter and 3 motions to the Pro Se Office (Exhibit 1). The three motions were:

a. Motion for a jury trial
b. Motion for a response time after April 15, 2009, for any informations submitted in March, 2009.
c. Motion for identity of John Does

INFORMATION IN SUPPORT OF MOTIONS was also included.
2. On March 2, 2009, Defendants Toala and Kelly were served with Summons, Amended Complaint, and Plaintiff interrogatories to discover identities and addresses of John Doe Defendants (not included as an Exhibit).
3. On March 27, 2009, Petitioner replied to the Pro Se Office of the U. S. District Court for the Southern District of New York concerning the correspondence of March 19, 2009, from Max McCann (Exhibit 2). In that correspondence, Petitioner stated that :

"I received a copy of a letter dated March 19, 2009, from Max McCann, Counsel for Raymond Kelly, in the above-named case. He requests '...that the Court order Plaintiff to provide an executed consent and authorization for the release of medical records and records that may have been sealed pursuant to New York Criminal Procedure Law #160.50'."

I find it curious that the police have lied to me three times, failed to submit waiver of summons forms, and failed to supply the names of John Does 1, 2 &3, but expect me to fulfill their requests. Furthermore Judge Keiltl has failed to act on three motions that I submitted on February 28, 2009. One of these was for a jury trial, a simple request that he cannot deny. A second one was for a time delay for responding to informations submitted in March, 2009, which is now moot. The third motion was to order Defendants Toala and Kelly to provide identification information for the John Does.

4. On March 30, 2009, Plaintiff filed criminal charges with the U. S. Attorney against the 5 named Defendants (Exhibit 3). Copies of the complaint were sent to each of the Defendants and the Pro Se Office of the U. S. District Court for the Southern District of New York. The charges were:

1. Kidnapping Plaintiff on April 17, 2007, and holding me in custody for 22 hours.
2. Interrupting Plaintiff's right to free assembly as guaranteed by Amendment I of the U. S. Constitution.
3. Reckless endangerment by ordering Plaintiff into a crowd with weapons.
4. Ordering Plaintiff to commit the criminal act of blocking pedestrian traffic.
5. Theft of two demonstration signs.
6. Filing false charges against Plaintiff (perjury).

5. April 2, 2009, ORDER of Judge Koeltl stating that there is no need to move for a jury trial, denying Plaintiff's request for an extension of time to respond, and denying the request to have defendants pay for service, and denying a motion for ordering the defendants to identify the John Doe Defendants. Also, he directed the Plaintiff to execute the releases for medical records and to provide execute releases concerning Plaintiff's arrest. In addition he granted Defendants and extension of time to respond to the complaint to May 15, 2009.
6. On April 2, 2009, Petitioner moved to close proceedings on Defendants Toala and Kelly (Exhibit 5).
7. On April 2, 2009, Paralegal Nicole Wright sent 2 separate letters, one with additional copies of release forms to Petitioner (Exhibit 6).
8. On April 6, 2009, Plaintiff submitted a letter to the Pro Se Office of the U. S. District Court for the Southern District of New York informing it that he had no medical records to provide Defendants, and that there was no criminal trial. Copies were sent to each of the 5 Defendants (Exhibit 7).
9. On April 6, 2009, Plaintiff submitted Interrogatories to Defendants Toala and Kelly to send names and identifying information for the five defendants, Persons, whose arrest were allegedly impeded by Plaintiff, Pedestrians whose passage was allegedly impeded by Plaintiff, and the lady who identified as a nurse and pleaded with police on behalf of Plaintiff at the demonstration of April 17, 2007. Accompanying this request were motions for the Court to order the Defendants to comply. (Exhibit 8). Copies were sent to the Pro Se Office of the U. S. District Court for the Southern District of New York.
10. On April 14, 2009, the Pro Se Clerk of the U. S. District Court for the Southern District of New York returned Exhibits 7 and 8 to Plaintiff stating that pursuant to Rule 5.1(a) discovery materials cannot be accepted for filing with the Court (Exhibit 9).
11. On April 16, 2009, Judge Koeltl denied Plaintiff's motion to close pleadings for Defendants Toala and Kelly on the grounds that those Defendants have not yet answered the complaint. He states that in his April 2, 2009, order he extended the time for Defendants who have been served to respond until May 15, 2009 (Exhibit 10).
12. On April 17, 2009, the Pro Se Clerk of the U. S. District Court for the Southern District of New York sent a letter to Plaintiff informing him that after he obtains the identity of the John Doe Defendants, he will have to file a newly amended complaint. He also advises Plaintiff that pursuant to the Court's April 1, 2009, Order Plaintiff must promptly execute the releases of medical and criminal records (Exhibit 11).
13. On April 20, 2009, Plaintiff executed a DESIGNATION OF AGENT FOR ACCESS TO SEALED RECORDS form in the presence of a notary public (Exhibit 12).
13. On April 22, 2009, the Pro Se Office of the U. S. District Court for the Southern District of New York returned the courtesy copy of Plaintiff's criminal complaint to U. S. Attorney of March 30, 2009, stating that the Court could not accept it (Exhibit 13).
14. On May 5, 2009, the Pro Se Office of the U. S. District Court for the Southern District of New York returned Plaintiff's courtesy copy of the DESIGNATION OF AGENT FOR ACCESS TO SEALED RECORDS (Exhibit 14).
15. On May 8, 2009, Attorney Max McCann wrote to Judge Koeltl to again request Plaintiff to complete the consent and authorization prepared by his office for the release of records, and for a second extension of time to respond to Plaintiff's Complaint (Exhibit 15).
16. On May 12, 2009, Judge Koeltl issued an ORDER directing plaintiff to provide counsel for defense the consent and authorization for the release of sealed records that has been provided by Attorney McCann . He also extended the time for defendants to respond until June 26, 2009 (Exhibit 16).
17. On May 13, 2009, Paralegal Nicole Wright of Attorney McMann's office sent another copy of the consent form to Plaintiff requesting a notarized Designation of Agent for Access to Sealed Records Pursuant to NYCPL #160.50(1)(d) (Exhibit 17).
18. On May 18, 2009, Plaintiff filed a PETITION FOR WRIT OF MANDAMUS (CONTINUED): URGENT TEMPORARY RESTRAINING ORDER NEEDED BY MAY 22, 2009) submitted to the U. S. Court of Appeals: 2nd Circuit (Exhibit 18).
19. On June 12, 2009, Counsel Max McCann sent a letter with exhibits to Judge Koeltl requesting that "Plaintiff's Complaint be dismissed pursuant of Fed R. Civ. P 16(f), 41(b) and 37(b)(2)(C) for Plaintiff's failure to prosecute this matter and failure to comply with Court Orders." (Exhibit 19). The exhibits attached to hs letter give the history of his complaints. Counsel McCann gives a number of references to support his claim that: "plaintiff has failed to comply with Orders of the Court and refused to provide documents necessary to respond to his complaint, the instant actions may also be dismissed with prejudice in accordance with Fed. R. Civ. P. 41(b)."
20. On June 16, 2009, Judge Koeltl issued an ORDER directing parties to attend a conference on June 26, 2009 (Exhibit 20).
21. On June 22, 2009, Plaintiff submitted a caustic letter stating that there was an "inaccuracy" in Mr. McCann's letter concerning the facts, essentially asserting that Judge Koeltl and Counsel McCann were in collusion to bury the case (Exhibit 21) Further Plaintiff stated that he would be in Las Vegas, NV on June 26, 2009, and could not attend the conference on that date. Plaintiff suggested some other dates.
22. On June 26, 2009, Judge Koeltl issued an ORDER to move the date of the conference from June 26, 2009, to July 17, 2009, to accommodate Plaintiff's travel schedule. He directs Plaintiff to provide the authorizations to Defense Counsel by July 10, 2009 (Exhibit 22). Apparently Judge Koeltl refuses to accept the fact that this already had been done twice.
23. On July 1, 2009, Mr. McCann wrote to Judge Koeltl (Exhibit 23) acknowledging that: "On or about April 24, 2009, this office received a document from plaintiff purporting to be a Designation of Agent for Access to Sealed Records Pursuant to NYCPL #160.50[1][d], drafted by plaintiff, which purports to give defendants access to records pertaining to his 'kidnapping.' By Order dated May 12, 2009, the Court directed plaintiff to execute the release forwarded to him by this office."
24. Exhibit 23 continues to state that: "in a good faith effort to obtain the necessary records without resorting to further litigation, this office requested records pertaining to plaintiff's arrest from the New York County Criminal Court and the New York County District Attorney's Office using the release provided by plaintiff. He was informed that the criminal case docket number is 2007NY029913," and that: "the records pertaining to plaintiff's arrest are not sealed pursuant to New York Criminal Procedure Law #160.50."
25. Exhibit 23 further states that "defendants Kelly and Toala respectively request that the Court stay the above-referenced civil action pending final disposition of the criminal charges filed against him." A number of reasons and Exhibits are given to support this position.
26. On July 17, 2009, a conference was held in Judge Koeltl's chambers. In addition to Court personnel, present were attorneys Max McCann and Elizabeth Daitz for the Defense; and Julian Heicklen, Plaintiff acting as Counsel Pro Se accompanied by Tracy Cook, a private transcriber for Plaintiff. Her transcript is not provided as evidence here, because it is not recognized by the Court. However all the participants have access to the official transcript of the Court Reporter.
27. Judge Koeltl objected to the presence of Tracy Cook. Plaintiff stated that he was told on July 14, 2009, by Ms. Allen of the Pro Se Office that he could bring anyone with him to the conference. Judge Koeltl permitted her to stay and record, but he warned Plaintiff to never bring his own court reporter again without first getting approval from the judge.
28. The Judge stated that the dispute about the plaintiff's providing releases was resolved.
29. Defendants suggested that the case be stayed because the criminal case against the plaintiff remains pending in the state court. They claimed that the district attorney's office provided a case number of 2007NY029913 for the criminal case.
30. Plaintiff responded with a review of the arraignment proceeding. He asserted that the docket number 2007NY029913 was taken from the arraignment papers, and that there was no case number, because there was no criminal case.
31. Plaintiff provided copies of the arraignment papers and New York State CPLR 30, which requires that a trial must be commenced with 90 days of arrest.
32. Plaintiff provided other statements (to be discussed later) to demonstrate that there is no criminal case pending.
33. Judge Koeltl said that the next step is an answer on the part of the Defendants.
34. The Judge then asked plaintiff what his charges are. Plaintiff replied kidnapping, perjury by Deponent Toala.
35. Judge Koeltl gave Defendants until July 31, 2009, to answer.
36. Attorney Daitz claimed that the defense is unable to corroborate anything that Mr. Heicklen has said with regard to the criminal case.
37. Then there followed some legal discussion between Attorney Daitz and Judge Koeltl about obtaining information from the District Attorney, which Plaintiff did not understand. Ms Daitz wanted the judge to stay the case until the criminal case ws resolved.
38. Plaintiff responded that there ws no criminal case, so that if the judge grants a stay, it would amount to a dismissal of the civil case.
39. Judge Koeltl gave Defendants until July 31, 2009, to file a motion for a stay. He gave Plaintiff until August 14, 2009, to file a response, and Defendants to reply by August 24, 2009.
40. Plaintiff then listed a number of grievances that he had with the proceedings in this case. Among them was that Defendant Toala was served on March 2, 2009, but neither he nor an attorney ever responded.
41. Judge Koeltl asked Attorney McCann if he was representing Officer Toala. Mr. McCann answered yes.
42. In a previous Motion (Exhibit 5), Plaintiff had moved that judgment be made against Defendant Officer Toala, because he had not replied within 30 days of the date of summons (March 2, 2009). Judge Koeltl refused.
43. Plaintiff complained that he is "not getting impartial treatment in this court. But perhaps that can be remedied."
44. Judge Koeltl took offense at this allegation. He replied "I deal with every case on the facts and the law with complete impartiality. And I will decide this case with complete impartiality." He then delivered a lecture to Plaintiff on how to proceed.
45. On July 17, 2009, Max McCann submitted a NOTICE OF APPEARANCE as "counsel of record on behalf of the Corporation Counsel of the City of New York, Michael Cardozo, attorney for defendant Officer Toala" (Exhibit 24).
46. On July 20, 2009, a letter from Max McCann to Plaintiff requested additional evidence to identify the John Does. (Exhibit 25) Enclosed was a video recording taken by members of the New York City Police Department to facilitate the identification of any individuals who may be named as John Doe defendants. It is further claimed that "this video conclusively establishes probable cause for your arrest, which is a complete defense to your false arrest claim. As such defendants contemplate moving to dismiss this action on the basis of this video evidence."
47. On July 20, 2009, Judge Koeltl issued an ORDER extending Defendants time to respond to July 31, 2009; Plaintiff respond by August 14, 2009, Defense may reply by August 24, 2009 (Exhibit 26)
48. On July 28, 2009, Plaintiff sent a letter to Attorney McCann thanking him for sending the DVD of the incident of April 17, 2007 (Exhibit 27). The letter requested by August 17, 2009, the identity of all participants involved in the incident Plaintiff also reminded Attorney McCann (and Judge Koeltl) that a judge cannot dismiss this case based on evidence, since a jury trial was demanded by Plaintiff.
49. Enclosed with the letter was an Interrogatory requesting the identity of all police officers at the confrontation with Plaintiff on April 17, 2007; of the nurse who aided Plaintiff; any known witnesses; all persons whose arrest allegedly was interfered by Plaintiff; and all persons whose pedestrian or vehicular passage was allegedly impeded by Plaintiff.
50. On July 31, 2009, Attorneys Max MicCann and Michael A. Cardozo filed a NOTICE OF MOTION and MEMORANDUM OF LAW TO DISMISS the Distinct Court civil case against the police. Accompanying these documents was a video of the incident of April 17, 2007, taken by the police. (Exhibits not provided because they are readily available to the parties in this case.)
51. On August 3, 2009, Judge Koeltl sent Plaintiff the cover letter with the NOTICE OF MOTION (Exhibit 28). On the cover letter Judge Koeltl had written that the time for Plaintiff to reply was August 17, 2009. He also stated that there is no stay of discovery and a letter is not a bases for a stay.
52. On August 3, 2009, Max McCann submitted Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1 to Plaintiff. His letter mistakenly identified Local Civil Rule 56.1 as Local Civil Rule 56.2 (Exhibit 29).
53. On August 6, 2009, Plaintiff sent a letter to Judge Koeltl (Exhibit 30) showing that there never was, is not presently, and never will be a criminal trial. Since Mr. McCann did not file a motion for stay by the July 31, 2009, deadline, the issue was now moot.
54. In his letter Plaintiff mentioned that Mr. McCann had introduced a new issue that the video shows irrefutable evidence that there is no material evidence for trial. He wants Judge Koeltl to dismiss the civil case against the police.
55. Plaintiff further argues that a judge is not permitted to decide issues of fact if a jury trial is demanded.
56. Plaintiff asks for a submission date of September 16, 2009, if the Judge needs further rebuttal to make a decision. Seven complaints against Mr. McCann were made by Plaintiff in conclusion of the letter of August 6, 2009.
57. On August 7, 2009, Plaintiff submits a brief entitled THE CRIMINAL NON-TRIAL (Exhibit 31) to support his claim that no criminal trial ever existed.
58. Cover letter of August 10, 2009, by Defendants' Counsels Cardozo and McCann's Memorandum of Law of stay discovery (Exhibit 32).
59. On August 10, 2009, Attorneys Max MicCann and Michael A. Cardozo filed a NOTICE OF MOTION and MEMORANDUM OF LAW TO STAY DISCOVERY for an Order to stay discovery "pending the resolution of defendants Police Commissioner Kelly's and Officer Toala's dispositive motion pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure." Accompanying these documents was a copy of the previous video of the incident of April 17, 2007, taken by the police. Exhibits not provided because they are readily available to all the parties in the case.
60. On August 18, 2009, Plaintiff respond to Defendants' claim that the DVD video provided irrefutable evidence of guilt of Plaintiff (Exhibit 33). His letter showed the following:

a. Other actors in the incident of April 17, 2009, did not agree that the evidence was irrefutable.
b. Incident of April 17, 2009, was a kidnapping (or a least unlawful imprisonment).
c. Specific responses to the MEMORANDUM OF LAW submitted by Attorneys McCann and Cardozo.
d. Limits of a judge's prerogatives
e. Local civil rules

He demanded that Mr. McCann be found in contempt.
61. On August 18, 2009, Judge Koeltl issued an ORDER advising Plaintiff to submit a response and affidavits (Exhibit 34) by September 4, 2009. Defendant's reply date is September 18, 2009.
62. In addition to all of the written correspondence from Mr. McCann, Nicole Wright, and Judge Koeltl, Mr. McCann continually badgered Plaintiff with telephone calls about submitting the Designation of Agent for Access to Sealed Records forms. After several of these calls, Plaintiff stopped answering telephone calls from Mr. McMann.

C. CLAIMS

I. Late entry of Defendant Toala
63. Defendants Toala and Kelly were served on March 2, 2009.
64. On July 17, 2009, Attorneys McCann and Cardozo made an entry for Defendant Toala, 3-1/2 months after it was due.
65 The summons served on Defendants Toala and Kelly reads, in part:

"SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) A lawsuit has been filed against you. Within 20 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court."

66. Notice that the last statement says the judgment by default will (not may) be entered against you. The only exceptions are given in Federal rules of Civil Procedure (FRCP) Rule 6 (1) which states:

(1) In General.
When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

67. Neither of these exceptions are applicable here. Therefore the Court must render judgment against Defendant Toala.

II. Harassment of Plaintiff
68. Attorney McCann and his paralegal, Nicole Wright, harassed Plaintiff by sending numerous letters requesting the execution of the release forms. (March 19, 2009; April 2, 2009; May 8, 2009; May 13, 2009; June 12, 2009, letter to Judge Koeltl).
69. Plaintiff sent these forms twice to Mr. McCann; once on April 6, 2009; and once on April 20, 2009.
70. Two of their letters were sent prior to Plaintiff's first submission; ??? of their letters, between his two submissions; and 3, after the second submission.
71. In their letters they always refer to Plaintiff's claim of the incident of April 17, 2007, as a claim of "false arrest." This is a euphemism used by the legal profession to obfuscate the event it describes. It is an oxymoron. There is no such thing as a false arrest. Plaintiff refers to the incident of April 17, 2007, to be a "kidnapping ."
72. Mr. McCann has made repeated telephone calls to Plaintiff badgering him for the release forms, even after he submitted them.
Plaintiff found these calls sufficiently annoying, that finally he refused to accept them.

III. Illegal request of Plaintiff's social security number
73. In his letters, Mr. McCann made illegal requests for Plaintiff's social security number (see Exhibits 2 and 6). He had no legitimate need for this information, since none of the New York State courts had this number.
74. The United States Social Security Administration policy states:
(http://www.ssa.gov/pubs/10002.html#protect)

"We maintain the privacy of Social Security records unless:
The law requires us to disclose information to another government agency; or
Your information is needed to conduct Social Security or other government health or welfare program business."

"You should be very careful about sharing your number and card to protect against misuse of your number. Giving your number is voluntary even when you are asked for the number directly. If requested, you should ask:
Why your number is needed;
How your number will be used;
What happens if you refuse; and
What law requires you to give your number.
The answers to these questions can help you decide if you want to give your Social Security number. The decision is yours"

IV. Refusal to respond to interrogatories
75. Discovery disclosure is required as stated in Rule 26(a)(1)(A)
Rule 26. Duty to Disclose; General Provisions Governing Discovery

(a) Required Disclosures.
(1) Initial Disclosures.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information "along with the subjects of that information" that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

76. Three times Plaintiff submitted Interrogatories to Attorney McCann to produce discovery material.(February 28, 2009; April 6, 2009, and July 27, 2009); Each interrogatory has been ignored.
77. After each Interrogatory was submitted, Plaintiff submitted motions to order Defendants to respond to the interrogatories. (February 28, 2009; April 6, 2009; and August 28, 2009).
78. The first motion was denied by Judge Koeltl on the flimsy reason that not enough information was available. Did Judge Koeltl really believe that Defendant Toala did not know which police officers assisted him in the kidnapping?
79. The second motion was returned to Plaintiff by the Clerk of Court with the statement that the Court does not aid in discovery.
80. No action has been taken by the Court on the third motion, which accompanies this Memorandum.

V. Providing misinformation about the facts
81. In his letter of May 8, 2009, to Judge Koeltl, Mr. McCann stated incorrectly that Plaintiff had not submitted release forms. As a result, Judge Koeltl was tricked into ordering Plaintiff on May 12, 2009, to provide information that he did not have, and which does not exist. This made Judge Koeltl an accessory to the obstruction of justice.
82. In his letter of June 12, 2009, Mr. McCann falsely states that Plaintiff: "has not provided the executed consent and authorization for release of records."
83. In his letter of July 1, 2009, Mr. McCann stated that the "criminal charges stemming from plaintiff's arrest on or about April 17, 2007, ...are currently pending in New York County Criminal Court." He further states that the case number of the criminal case is 2007NY029913. At the conference of July 17, 2009, Counsel Elizabeth Daitz repeated this statement.
84. Both statements are false. The number 2007NY029913 is the docket number of the unexecuted arraignment form. There is no criminal case number, because there is no criminal case (My brief exhibit number)
85. In her letter of May 13, 2009, Nicole Wright states that Plaintiff claims that his criminal case was dismissed. Plaintiff never made such a claim, because he asserts that there never was a criminal case.

VI. Introducing tampered evidence
86. On July 20, 2009, Mr. McCann submitted a tampered video as evidence. The most important part of the sound track, in which Plaintiff is placed "under arrest," is missing.

VII. Stalling to delay proceedings in order to obstruct justice
87. Defendants are acting in bad faith. They are attempting to stall the proceedings until the Plaintiff dies.
88. They were served on March 2, 2009, so their response was due on April 4, 2009. However, Judge Koeltl extended the time to respond to April 15, 2009. On April 12, 2009, he further extended the response time to May 15, 2009. On May 15, 2009, Judge Koeltl again extended Defendant's time to June 26, 2009; on July 17, 2009, until July 31, 2009; on July 20, 2009, until August 23, 2009; on August 14, 2009, until September 18, 2009.
89. On June 12, 2009, Counsel Max McCann requested that "Plaintiff 's Complaint be dismissed pursuant to Fed R. Civ. P 16(f), 41(b) and 37(b)(2)(C) for Plaintiff 's failure to prosecute this matter and failed to comply with Court Orders."
90. On July 17, 2009, at the conference Attorney Daitz requested that the Judge issue a stay until the criminal case was resolved. Plaintiff responded that a stay would amount to burying the case, since there is no criminal case.
91. On July 17, 2009, Attorneys McCann and Cardozo made an entry for Defendant Toala, 3-1/2 months after it was due.
92. On July 31, 2009, Attorneys McCann and Cardozo submitted Motions and a Memorandum of Law to dismiss the civil case. This was based on evidence in the DVD video. The arguments presented were ridiculous on their face.
93. In any event, a judge cannot dismiss a case in a jury trial based on a judgment of the facts or evidence.

VIII. Summary
94 In summary, Plaintiff accuses Defendants of the following
a. belated entry of Defendant Toala
b. harassment of Plaintiff
c. illegally requesting Plaintiff 's social security number
d. entrapment of Judge Koeltl into being a coconspirator to obstruct justice
e. refusal to respond to interrogatories
f. providing misinformation about facts (euphemism for lying).
g. submitting tampered evidence
h. making ridiculous claims
i. stalling to delay proceedings
j. obstruction of justice

D. REMEDIES

95. Judgment by default must be entered against Defendant Toala
96. Find Attorney McCann in contempt of court, have him arrested, and incarcerated until discovery requested in Plaintiff's Interrogatories is delivered.
97. In addition, find Attorney Cardozo in contempt of court and order him to provide discovery material requested by Plaintiff before September, 15, 2009.
98. If discovery material is not delivered before September 15, 2009, Judge Koeltl should award requested damages to Plaintiff by September 18, 2009.
99. No extensions of the September 15, 2009, submission date should be allowed.
100. If the trial is to continue, the Clerk of Court should provide a calendar of proceedings to trial by September 22, 2009, in which the trial must be completed by January 31, 2010. This calendar must include dates for the following:

a. Revised Complaint returned to Plaintiff for service of summons to new list of defendants. Plaintiff will submit revised complaint to the Court on October 1, 2009.
b. Response to request by Plaintiff to the Clerk of Court for the jury selection information requested
c. List of jury pool names and other pertinent information
d. Jury selection
e. Procedure for voir dire
f. Service of subpoenas
g. Individual interviews of all defendants and other witnesses
h. Possible dates for the jury trial

E. MOTIONS

101. Plaintiff moves that Judge Koeltl find Attorney McCann in contempt of court, have him arrested, and incarcerated until discovery requested in Plaintiff 'Interrogatories is delivered.
102. Plaintiff moves that Judge Koeltl, in addition, find Attorney Cardozo in contempt and to provide discovery material requested by Plaintiff before September, 15, 2009.
103. Plaintiff moves that, if discovery material is not delivered before September 15, 2009, Judge Koeltl should award requested damages to Plaintiff by September 18, 2009.

 

F. AFFIDAVIT OF PLAINTIFF

I, Julian Heicklen, Plaintiff and Counsel Pro Se in U. S, District Court of the Southern District of New York Case #08 CV 02457 (JGK), in accordance with Local Civil Rule 56 (e)(2), do affirm, under penalty of perjury, that all information and allegations in this document entitled:

MEMORANDUM OF LAW IN SUPPORT OF CONTEMPT PROCEEDINGS AGAINST COUNSELS FOR DEFENSE MICHAEL A. CARDOZO AND MAX MCCANN

are true and correct to the best of my knowledge.

______________________
Julian Heicklen
Plaintiff
Counsel Pro Se

____________________
Date

G. CERTIFICATE OF SERVICE

This certifies under penalty of perjury that a copy of MEMORANDUM OF LAW IN SUPPORT OF CONTEMPT PROCEEDINGS AGAINST COUNSELS FOR DEFENSE MICHAEL A. CARDOZO AND MAX MCCANN has been sent by legal certified U. S. mail to each of the following on August 28, 2009:


Pro Se Office
Room 230
U. S. District Court
Southern District of New York
U. S. Courthouse
500 Pearl Street
New York, NY 10007
Tel: 212 805 0136

Judge John G. Koeltl
U. S. District Court S.D.N.Y.
U. S. Courthouse
500 Pearl Street
New York, NY 10007

Michael A. Cardozo

Corporation Counsel
The City of New York100 Church Street
New York, NY 10007
212 788 0861

Max McCann
Assistant Corporation Counsel
The City of New York
Law Department
100 Church Street
New York, NY 10007

_____________________
Julian Heicklen, Plaintiff
Counsel Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
814-880-9308


__________________
Date

H. EXHIBITS

1. Cover letter and 3 motions sent by Plaintiff to the Pro Se Office on February 28, 2009

2. March 27, 2009, letter of Plaintiff to the Pro Se Office

3. On March 30, 2009, Plaintiff filed criminal charges with the U. S. Attorney against the 5 named Defendants (Exhibit 2)

4. ORDER of Judge Koeltl of April 2, 2009.

5. On April 2, 2009, Petitioner moved to close proceedings on Defendants Toala and Kelly

6. On April 2, 2009, Nicole Wright sent additional copies of release forms to Petitioner

7. Plaintiff 'letter of April 6, 2009, indicating that he previously had submitted all information that he had about the criminal court case

8. Plaintiff 'Interrogatory and Motion of April 6, 2009, to obtain identities of witnesses

9. Letter of Pro Se Clerk of April 14, 2009, to Plaintiff

10. ORDER of Judge Koeltl of April 16, 2009, denying Plaintiff 's motion to close pleadings

11. Letter of the Pro Se Clerk to Plaintiff of April 17, 2009, regarding submission of records and identity of the John Doe Defendants

12. Designation of Agent statement of Plaintiff executed on April 20, 2009

13. Letter of April 22, 2009, from the Pro Se office to Plaintiff returning complaint to U. S. Attorney

14. Letter of May 5, 2009, from the Pro Se office to Plaintiff returning Designation of Agent form

15. Letter of May 8, 2009, from Attorney McCann to Judge Koeltl

16. ORDER of Judge Koeltl of May 12, 2009, directing Plaintiff to provide counsel for defense the authorization form by May 22, 2009. Defendant 'time to move or answer is extended to June 26, 2009.

17. Letter of Nicole Wright of May 13, 2009, to Plaintiff requesting a notarized Designation of Agent for access to sealed records

18. May 18, 2009, PETITION FOR WRIT OF MANDAMUS (CONTINUED): URGENT TEMPORARY RESTRAINING ORDER NEEDED BY MAY 22, 2009) submitted to the U. S. Court of appeals for the Second Circuit by Plaintiff

19. Letter of Max McCann to Judge Koeltl of June 12, 2009, complaining about non-release of records. Attachments give history of his complaints

20. Order of Judge Koeltl of June 16, 2009, directing parties to attend conference on June 26, 2009

21. Letter of Plaintiff to Judge Koeltl of June 22, 2009, informing him that he could not attend conference of June 26, 2009

22. ORDER of Judge Koeltl of June 26, 2009, rescheduling conference of June 26, 2009, to July 17, 2009. He also ordered Plaintiff to provide authorizations of consent by July 10, 2009.

23. Letter of Max McCann to Judge Koeltl of July 1, 2009, about consent and release forms with exhibits

24. NOTICE OF APPEARANCE on July 17, 2009, by Max McCann as counsel for defendant Officer Toala

25. Letter of July 20, 2009, from Max McCann to Plaintiff

26. ORDER of Judge Koeltl of July 20, 2009, extending Defendants time to respond to July 31, 2009; plaintiff respond by August 14, 2009, Defense may reply by august 24, 2009

27. Letter from Plaintiff of July 28, 2009, to Max McCann thanking him for the video and reminding Judge that he cannot decide

28. Copy of the cover letter of July 31, 2009, from Max McCann to Judge Koeltl, forwarded to plaintiff on August 3, 2009, by Judge Koeltl

29. Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1

30. Cover letter of August 6, 2009, from Plaintiff to Judge Koeltl

31. The CRIMINAL NON-TRIAL submission of August 7, 2009, by Plaintiff

32. Cover letter of August 10, 2009, by Defendants' Counsels Cardozo and McCann's Memorandum of Law of stay discovery

33. Plaintiff response of August 18, 2009, to irrefutable evidence submitted claimed by Defendants

34. ORDER of Judge Koeltl of August 18, 2009, advising Plaintiff to submit a response and affidavits