734 Rutland Avenue
 Teaneck, NJ 07666
 814–880–9308 jph13@psu.edu

May 17, 2011

Jame L. Cott
S. Magistrate Judge
U. S. District Court of Injustice
Southern District of New York
500 Pearl Street
New York, NY 10007

Re: Julian Heicklen v. U. S. Department of Homeland Security Case #10 Civ. 2239 (RJH)(JLC)

PLAINTIFF’S REPLY TO MEMORANDUM OF LAW IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE RULE 12

Dear Judge Cott:

    In my letter of March 25, 2011, I responded to the text of the MEMORANDUM OF LAW submitted by Assistant U. S. Attorney Pellegrino to dismiss the above referenced civil case. I did not respond to the individual items in the Table of Authorities because Mr. Pellegrino’s letter did not have numbered items. I requested that he resubmit his document with numbered items to make it easier to identify them in the response. I have received no such document. In this letter I will attempt to reply to the references given in the Table of Authorities.

    Plaintiff will not discuss any of the 97 court opinions.    The fact that these exist indicates that a lower court judge had a different interpretation of the law. Plaintiff has neither the time nor resources to read each decision and rebut Defendant’s interpretation.

    A discussion of the statutes, rules, and regulations follows:

STATUTES
42 U. S. C. § 1983 Civil action for deprivation of rights: The reference is in regard to the criminal charges, which are not part of Plaintiff’s civil claim.

28 U. S. C. § 1346(b)(1) United States as defendant: Defendants’ counsel claims on page 17 that under this statute the U. S. government can be held liable for monetary damages. On page 18, he states court decisions that state that the U. S. Government is sovereign and cannot be sued without its consent. As the agent of the U. S. government he then refuses to give this consent.

    This chain of reasoning leads to the conclusion that the U. S. government or its agents can be immune from prosecution for any heinous or criminal action.   If so then armed rebellion is the only method left to the injured parties. Does the court really want this to be the case?   If so, armed rebellion is sure to occur and judges will be hanging from trees.  Plaintiff believes that a significant number of people would be eager to participate in this solution.

    However there is a fundamental flaw in the government’s argument. The government is not sovereign. It is the servant of the people, who are sovereign in our country. It is good to be king.

18 U. S. C. § 1504 Influencing Jurors by Writing: The charges under which Plaintiff was arrested by the federal police have been dismissed by the U. S. Attorney, because they are violations of the First Amendment of the U. S. Constitution. Instead, Assistant U. S. Attorney Mermelstein filed a criminal complaint against Plaintiff for jury tampering.  However she has been unable to produce any juror to support this allegation. Plaintiff has filed a motion to dismiss with the criminal court judge.

18 U. S. C. § 1507 Filing document as constructive notice; publication in Federal Register as presumption of validity; judicial notice; citation: The U. S. Attorney discusses a number of filing and service errors of Plaintiff. This problem will be remedied after Plaintiff receives the identities of all the John Doe Defendants and submits an amended complaint.

Footnote 7 on page 25: The U. S. Attorney argues that the federal government is not responsible for the items it stole from Plaintiff, because it gave them away to a third party. This is a new variation of the plea for mercy by a man who killed his parents, because he is an orphan. And he claims that I am insane!

18 U. S. C. § 287 False, fictitious or fraudulent claims: Any federal police officer should have known that 41 C. F. R. § 102–74.415 is a violation of Amendment I of the U. S. Constitution. At a minimum, when advised of this by Plaintiff, he should have verified its validity with a judge of the court before making an arrest. He could not claim that this risked the danger of the accused leaving the scene. That is exactly what the officer wanted and directed the Plaintiff to do.

28 U. S. C. § 2675 Disposition by federal agency as prerequisite; evidence: On page 20, the Defendants MEMORANDUM OF LAW states: “An action shall not be instituted upon a claim against the United States...unless the claimant shall have first presented the claim to the appropriate federal agency. Plaintiff requested return of the property verbally from the federal property office and in writing to Federal Defender Baum (assigned to the criminal case against me) on June 28, 2010 (copy enclosed); to Judge Holwell on September 30, 2010 (copy enclosed); to you and to all the federal defense counsels in my letter to you of September 8, 2010; and in my letter to Chief Judge Preska of November 1, 2010 (copy enclosed in my correspondence to you of March 30, 2011).

28 U. S. C. § 2679(b)(1) Exclusiveness of Remedy: The U. S. Attorney argues that Plaintiff has sued the wrong defendants. Plaintiff will include the U. S. government in the revised complaint. However the individual defendants are responsible for sending Plaintiff to the torture hospitals, instead of to a magistrate, after arrest.

Homeland Security act of 2002 Department of Homeland Security: “sue and be sued” provision is not in the Department’s enabling legislation, so it is of no relevance.

RULES
Fed. R. Civ. P. 4(e). Settlement, Voluntary Dismissal, or Compromise: Plaintiff will consider an offer for settlement or compromise, but will not voluntarily dismiss the complaint.

Fed. R. Civ. P. 4(m). Summons: Service was made on the known federal defendants within 120 days of filing.    When all of the John Doe defendants are identified, Plaintiff will serve all defendants with a revised complaint. Plaintiff is waiting for the court to order all defendant counsels to identify all the John Doe defendants.

Fed. R. Civ. P. 8(a)(1). Jurisdictional Claim for Relief: The reference refers to the criminal complaint that Plaintiff submitted to the U. S. Attorney for presentment to a Grand Jury. It is not relevant to the present civil complaint.

Fed. R. Civ. P. 12(b)(5). Insufficient service of process: When all the John Does are identified, the complaint will be served again to all the defendants.

Fed. R. Civ. P. 56. Summary Judgment: This reference refers to the criminal complaint, which is not applicable here.

REGULATIONS
6 C. F. R. § 5.42. Service of Summons: All defendants will be served when the John Doe defendants are identified.

41.C. F. R. § 102–74.415. Policy for posting and distributing materials: This policy violates Amendment I to the U. S. Constitution. Plaintiff was arrested 10 times at the U. S. District Court of Injustice, Southern District of New York, and once at the U. S. District Court of Injustice in Newark, NJ. All charges were dropped and the cases dismissed by the U. S. attorneys. Plaintiff was arrested once in Springfield, MA at the U. S. District Courthouse on June 23, 2010. He did not pay the fine nor appear at a hearing. He has not had any further correspondence from that court. Presumably this case is moot.


Sincerely yours,


Julian Heicklen
Plaintiff
Counsel Pro Se

Encl: Letter of June 28, 2010 to Robert Baum
      Letter of September 30, 2010 to Judge Holwell


CERTIFICATE OF SERVICE

    Plaintiff certifies, under penalty of perjury, that PLAINTIFF’S REPLY TO MEMORANDUM OF LAW IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE RULE 12 was sent by certified U. S. mail on May 17, 2011, to the following:

James L. Cott, U. S. Magistrate Judge, U. S. District Court of Injustice, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007

Louis A. Pellegrino, Assistant U. S. Attorney, 86 Chambers Street, 3rd Floor, New York, NY 10007, 212–637–2689

Lesley Berson, Assistant Corporation Counsel, The City of New York, Law Department, 100 Church Street, New York, NY 10007, 202–788–0408

Elizabeth O’Brien Totten, Kaufman Borgeest & Ryan LLP, 120 Broadway, New York, NY 10271, 212–980–9600

Robert Drucker, Martin Clearwater & Bell LLP, 220 East 42nd Street, New York, NY, 10017, 212–916–0955

Pro Se Clerk, Room 230, U. S. District Court of Injustice, U. S. Courthouse, Southern District of New York, 500 Pearl Street, New York, NY 10007

Richard J. Holwell, U. S. District Judge, U. S. District Court of Injustice, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007


_____________________
Julian Heicklen
 Plaintiff
 Counsel Pro Se


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Date