UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT 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: MISUSE OF COURT RULES

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


____________________
Date

CONTENTS

Page

A. PREAMBLE_________________________________________________________________________________________3

B. LATE ENTRY OF DEFENDANT TOALA________________________________________________________________3

C. AIDING DISCOVERY________________________________________________________________________________5

D. REFUSAL TO RESPOND TO INTERROGATORIES______________________________________________________10

E. EXTENSION OF RESPONSE TIMES____________________________________________________________________11

F. REFUSING INFORMATIONS FOR THE CASE RECORD__________________________________________________13

G. VIOLATION OF FORMAT RULE______________________________________________________________________14

H. VIOLATIONS OF ___________________________________________________________________________________14

I. RULES CITED ______________________________________________________________________________________15

J. REFERENCES_______________________________________________________________________________________16

K. AFFIDAVIT OF PLAINTIFF__________________________________________________________________________17

L. CERTIFICATE OF SERVICE__________________________________________________________________________18

M. EXHIBITS_________________________________________________________________________________________19

A. PREAMBLE

1. The U. S. District Court of the Southern District of New York routinely violates its own rules. Specific examples follow below. Citations given by number and/or Exhibit number refer to the reference number (1 or 2), and its item number, and/or exhibit number, respectively, in the two reference given at the end of this memorandum in Section J.

B. LATE ENTRY OF DEFENDANT TOALA

2. On March 2, 2009 Defendants Toala and Kelly were served (2-63).
3. On March 25, 2009, Attorneys Michael A. Cardozo and Max McCann filed a NOTICE OF APPEARANCE for Defendant Kelly, but not Defendant Toala (1-24: Exhibit 18).
4. On April 2, 2009, Plaintiff moved to close proceedings on Defendants Toala and Kelly (2-6: Exhibit 5).
5 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 (2-11).
6. On July 17, 2009, Attorneys McCann and Cardozo made an entry for Defendant Toala, 3-1/2 months after it was due (2-64).
7. Based on FRCP 4(a)(1)(E), the summons served on Defendants Toala and Kelly reads, in part (2-65):

"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."

When an act may or must be done within a specified time, the court may, for good cause, extend the time:
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.

8. Notice that the above 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 (2-66):

(1) In General.
When an act may or must be donewithin a specified time, the court may, for good cause, extend the time:
with or without motion or notice if the courtacts, 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.

9. Neither of these exceptions are applicable here. Therefore the Court must render judgment against Defendant Toala (2-67).
10. At the conference of July 17, 2009, Plaintiff mentioned the late entry of defense counsel for Defendant Toala and asked that the Court issue judgment against him. Judge Koeltl's response was:

"...default judgments are not favored in the court. If a defendant shows up and is prepared to litigate, the court favors cases being litigated on their merits."

C. AIDING DISCOVERY

11. Plaintiff received a copy of a letter dated March 19, 2009, from Max McCann, Counsel for Raymond Kelly, in the above-named case. He requested"...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." (1-22: Exhibit 16)

12. On March 27, 2009, Plaintiff 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. In that correspondence, Petitioner stated that (1-26: Exhibit 20):

"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 (sic) 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."

13. On April 2, 2009, Paralegal Nicole Wright sent two separate letters, one with additional copies of release forms to Petitioner (2-7: Exhibit 6).
14. On April 2, 2009, Judge Koeltl issued an ORDER stating that there is no need to move for a jury trial, denying Plaintiff's request for an extension of time to respond, 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 executed releases concerning Plaintiff's arrest. In addition he granted Defendants and extension of time to respond to the complaint to May 15, 2009 (2-5).
15. 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, identified as a nurse, who 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 (2: Exhibit 8). Copies were sent to the Pro Se Office of the U. S. District Court for the Southern District of New York (2-9).
16. 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 of reference 2 to Plaintiff stating that pursuant to Rule 5.1(a) discovery materials cannot be accepted for filing with the Court (2-10: Exhibit 9).
17. Plaintiff sent these forms twice to Mr. McCann; once on April 6, 2009; and once on April 20, 2009 (2-69).
18. 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 advised Plaintiff that pursuant to the Court's April 1, 2009, Order Plaintiff must promptly execute the releases of medical and criminal records (2-12).
19. On April 20, 2009, Plaintiff executed a DESIGNATION OF AGENT FOR ACCESS TO SEALED RECORDS form in the presence of a notary public (2-13, Exhibit 12).
20. 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 (2-14: Exhibit 14).
21. Attorney McCann was not satisfied with either of Plaintiff's two responses to the Interrogatory. 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. He filed a Motion with Judge Koeltl to order Plaintiff to complete the interrogatory exactly as submitted (2-15).
22. On May 9, 2009, Judge Koeltl issued such an ORDER. So much for the Court not aiding in discovery (Exhibit B).
23. 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 (2-16, Exhibit 16).
24. On June 12, 2009, Mr. McMann sent a letter to Judge Koeltl requesting dismissal of the case because Plaintiff has not submitted an executed or release of records that may have ben sealed pursuant to New York Criminal Procedure Law #160.50" (Exhibit A).
25. On June 16, 2009, Judge Koeltl issued an ORDER instructing parties to appear at a conference on June 26, 2009 (Exhibit B).
26. On June 22, 2009, Plaintiff informed Judge Koeltl that he would be out-of-town on June 26, 2009, and suggested some other dates (Exhibit C).
27. 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 (2-22: Exhibit 22). Apparently Judge Koeltl refuses to accept the fact that this already had been done twice.
28. On July 28, 2009, Plaintiff sent a letter to Max McCann with 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 (2-49: Exhibit 27).
29. A summary of the Court's aid to defendants' discovery is:

a. Requests for DESIGNATION OF AGENT FOR ACCESS TO SEALED RECORDS were sent to Plaintiff by Defendants by mail five times (March 19, April 2 [2 letters from Paralegal Nicole Wright], May 8, 2009; and May 12, 2009). The last two letters were sent after Defendants had received the completed designation.
b. Judge Kooeltl issued ORDERS and requests to Plaintiff five times (April 2, 2009; May 9, 2009; May 12, 2009; June 16, 2009; and June 26, 2009) to submit the designation. Four of these ORDERS and requests were made after Plaintiff had submitted the designation.
c. On April 14, 2009, the Pro Se Clerk advised Plaintiff that pursuant to the Court's April 1, 2009, Order Plaintiff must promptly execute the releases of medical and criminal records. This request was made after Plaintiff had made the first submission.
d. Plaintiff had submitted the designation forms twice (April 6, 2009, and April 20, 2009). Between submissions Plaintiff received a telephone call from Mr. McCann stating that the first submission was unsatisfactory.
e. On May 5, 2009, the Pro Se Clerk returned Plaintiff's courtesy copy of the release form which he submitted to the Court.

30. A summary of the Court's refusal to aid Plaintiff's discovery is:

a Plaintiff submitted three Interrogatories (February 8, 2009; April 6, 2009; and July 28, 2009) to Defendants asking them to identify the John Doe police officers who were listed as Defendants .
b. On April 14, 2009, the Pro Se Clerk returned Plaintiff's interrogatory of April 6, 2009 with the statement "Pursuant to Rule 5.1(a) of the Local Rules for the Southern District of New York, discovery materials cannot be accepted for filing with the Court."
c. Plaintiff submitted motions three times (February 28, 2009; April 6, 2009; August 28, 2009) to the Court asking for an ORDER on defendants to respond to the interrogatories. The first motion was denied by Judge Koeltl. The second motion was returned to Plaintiff with the statement that the Court does not aid in discovery. There has been no response to the third motion.

D. REFUSAL TO RESPOND TO INTERROGATORIES

31. Discovery disclosure is required as stated in Rule 26(a)(1)(A) (5-75)

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;

32. 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 (2-76).
33. 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) (2-77).
34. 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 (2-78)?
35. The second motion was returned to Plaintiff by the Clerk of Court with the statement that the Court does not aid in discovery (2-79).
36. No action has been taken by the Court on the third set of motions (2-101, 2-102, 2-103).

E. EXTENSION OF RESPONSE TIMES

37. On February 28, 2009, Petitioner sent a cover letter and 3 motions to the Pro Se Office (2-1, 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

38. On April 2, 2009, of Judge Koeltl issued an ORDER stating that there is no need to move for a jury trial, denying Plaintiff's request for an extension of time to respond, 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 executed releases concerning Plaintiff's arrest (2-5).
39. On June 12, 2009, Max McCann sent a letter to Judge Koeltl (Exhibit A) complaining (incorrectly) that Plaintiff has not provided the executed consent and authorization for the release of records that may have been sealed pursuant to NYCPL #160.50. He requested that plaintiff's complaint be dismissed pursuant to FRCP 16(f). 41(b) and 37(b)(2)(C).
40. On June 16, Judge Koeltl issued an ORDER for a conference among the parties on June 26, 2009 (Exhibit B).
41. To accommodate Plaintiff's travel schedule (Exhibit C), the conference date was changed to July 17, 2009 (2-22).
42. On July 20, 2009, Judge Koeltl issued an order giving defendants time to move or answer is extended to July 31, 2009. Any motion to stay the defendants wish to file must also be filed by July 31, 2009. "The plaintiff's response to any motion to stay is due by August 14, 2009. The defendants may reply by August 24, 2009." (2-47, Exhibit 26).
43. On August 18, 2009, Judge Koeltl issued an ORDER advising Plaintiff to submit a response and affidavits by September 4, 2009. Defendant's reply date is September 18, 2009 (2Ã-61: Exhibit 34).
44. The original response time for Defendants was 30 days after receiving the summons of March 2, 2009. Thus it would be April 2, 2009. However response time extensions were given by Judge Koeltl as follows:

a. The initial response time of 30 days to answer the summons of March 2, 2009, was April 2, 2009.
b. On April 2, 2009; the date was extended to May 15, 2009.
c. On May 12, 2009, the date was extended to June 26, 2009.
d. On July 20, 2009, the date to move was extended to July 31, 2009
e. On July 20, 2009. the date to reply was extended to August 24, 2009
f. On August 18, 2009, the date was extended to September 18, 2009

No time extension requests of Mr. McCann were refused.
45. Plaintiff made two requests for time extensions. One was denied, and one was granted. These were:

a. On February 28, 2009, Plaintiff requested a time extension until April 15, 2009 to response to any informations he might receive, because he would be out of town from March 3-22, 2009. On April 2, 2009, Judge Koeltl refused Plaintiff's request for a time extension to April 15, 2009.
b. 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. (2-22: Exhibit 22)

F. REFUSING INFORMATIONS FOR THE CASE RECORD

46. 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 of reference 2 to Plaintiff stating that pursuant to Rule 5.1(a) discovery materials cannot be accepted for filing with the Court (2-10, Exhibit 9).
47. 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 (2-14, Exhibit 14).
48. The second motion was returned to Plaintiff by the Clerk of Court with the statement that the Court does not aid in discovery (2-79).
49. Letter of Pro Se Office of the U. S district Court of Southern New York to Plaintiff of August 4, 2009, (Exhibit D) returning Interrogatories of July 28, 2009.

G. VIOLATION OF FORMAT RULE

50. In my letter of August 8, 2009, (copy enclosed) I point out that Local Civil Rule 56.1 (a) states:

"Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion."

51. Since Mr. McCann failed to follow this rule, this is grounds for the rejection of his Memorandum of Law and denial of the motion based on this memorandum. However Judge Koeltl did not do this.

H. VIOLATIONS OF RULES

52. In summary, the rules with which the Court did not comply are summarized as:

a. FRCP 4(a)(1)(E) not enforced-reply time after service.
b. Court does not enforce discovery rule FRCP 26(a)(1)(A) on Defendants.
c. Court continues to give unwarranted extensions of time to Defendants to answer complaint. Defendants submit unfounded requests for time extensions for the purpose of delaying trial until the Plaintiff dies. Some of their requests contain misinformation and even a tampered DVD video made by the police.
d. Court does not accept submissions of Plaintiff based on Rule 5.1(a) discovery materials cannot be accepted for filing with the Court. It used this rule to return Motion requests, information about jury procedures, interrogatories, and release forms. Meanwhile Judge Koeltl is issuing ORDERS to Plaintiff to deliver discovery materials which either do not exist or which have already been delivered to Defendants.
e. Defendants did not follow the format required by Local Civil Rule 56.1 (a) with impunity when they submitted their MEMORANDUM OF LAW for dismissal based on the DVD video evidence.

I. RULES CITED IN THE TEXT

FRCP 4(a)(1)(E)
FRCP 6(1)
FRCP 12
FRCP 16(f)
FRCP 37(b)(2)(C)
FRCP 41(b)
NYCPL §160.50
Local Rule 5.1(a)
Local Rule 26(a)(1)(A)
Local Civil Rule 56.1 (a)

J. REFERENCES

1. J. Heicklen, Writ of Mandamus: Permanent Restraining Orders (June 19, 2009)
2. J. Heicklen, Memorandum of Law (August 28, 2009)

K. 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: MISUSE OF COURT RULES are true and correct to the best of my knowledge.

______________________
Julian Heicklen
Plaintiff
Counsel Pro Se

____________________
Date
L. CERTIFICATE OF SERVICE

This certifies under penalty of perjury that a copy of MEMORANDUM OF LAW: MISUSE OF COURT RULES has been sent by legal certified U. S. mail to each of the following on September 3, 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

Michael A. Cardozo, Corporation Counsel, The City of New York, 100 Church Street, New York, NY 10007

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

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

J. Michael MacMahon, Clerk of Court, U. S. District Court, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007

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

__________________
Date

M. EXHIBITS

Exhibit A: June 12, 2009 letter of Max McCann to Judge Koeltl
Exhibit B: June 16, 2009, ORDER of Judge Koeltl for a conference on June 26, 2009
Exhibit C: June 22, 2009, letter of Plaintiff to Judge Koeltl
Exhibit D: Memo of August 4, 2009 from Pro Se Clerk to Plaintiff