UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Civil Action, File Number III

Julian Heicklen
 Plaintiff


            v.                                                                                                                                                                                             Case # 10 Civ. 02239 (RJH)(JLC)

S. Department of Homeland Security
New York City Fire Department
Saint Vincent Hospital
Bellevue Medical Center
New York Downtown Hospital
U. S. Central Violations Bureau
    et al.
Defendants



RESPONSE TO MEMORANDUM OF LAW IN SUPPORT OF FEDERAL DEFENDANT’S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE RULE 12



__________________
Julian Heicklen
Plaintiff
Counsel Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
Telephone: 814–880–9308
E-mail: jph13@psu.edu


____________________
Date

1. In the Memorandum, the federal defendants request that the case be dismissed based on Rule 12(b)(6): failure to state a claim upon which relief can be granted.
2. The federal defendants claim that they have immunity from prosecution as individuals when performing duties for the U. S. government.  
3. The Department of Homeland Security cannot be sued because it is an agency of the government.  
4. The proper actor to sue is the U. S. government.
5. The U. S. government cannot be sued because it has sovereign immunity.
6. In the United States, the government, its agencies, and its employees are not sovereign.  The citizens are sovereign.  The United States, its agencies, and employees are servants of the people.
7. Defendants argue that they can take action which violate the U. S. Constitution and not be held individually.
8. All U. S. agents are responsible to uphold the U. S. Constitution, even when ordered to do otherwise. 
9. Most federal protection service officers refused to enforce the regulation against distributing literature on federal property.

10. Plaintiff has distributed his fully informed jury information in the following cities at the federal district courts:
Boston, MA: 1 time, no citation nor arrest
Springfield, MA: 2 times, one citation and arrest, case not prosecuted
Keene, NH: 1 time, no citation nor arrest
Burlington, VT: 1 time, no citation nor arrest
Hartford, CT: 2 times, no citation nor arrest
Albany, NY: 3 times, no citation nor arrest
White Plains, NY: 1 time, no citation nor arrest
Manhattan, NY: 14 times, 11 arrests, 10 citations
Brooklyn, NY: 1 time, no citation nor arrest
Newark, NJ: 2 times, 1 citation and arrest, case dismissed
Trenton, NJ: 2 times, no citation nor arrest
Camden, NJ: 1 time, no citation nor arrest
 Wilmington, DE: 1 time, no citation nor arrest
Baltimore, Md: 1 time, no citation nor arrest
Washington, DC: 1 time, no citation nor arrest
Alexandria, VA: 1 time, no citation nor arrest
Miami, FL: 1 time, no citation nor arrest
Fort Lauderdale, FL: 3 times, no citation nor arrest
West Palm Beach, FL: 1 time, no citation nor arrest
Orlando, FL: 1 time, no citation nor arrest
Tampa, FL: 1 time, no citation nor arrest
Philadelphia, PA: 3 times, no citation nor arrest
Allentown, PA: 3 times, no citation nor arrest
Reading, PA: 1 time, no citation nor arrest
Harrisburg, PA: 1 time, no citation nor arrest
Johnstown, PA: 1 time, no citation nor arrest
Pittsburg, PA: 1 time, no citation nor arrest
San Diego, CA: 1 time, no citation nor arrest
El Centro, CA: 1 time, no citation nor arrest
Riverside, CA: 1 time, no citation nor arrest
Santa Ana, CA: 1 time, citation and arrest only for failure to obey a police order. Case still pending.
Los Angeles,CA: 1 time, no citation nor arrest
Reno, NV: 1 time, no citation nor arrest

11. At only 4 of 33 courthouses has Plaintiff been arrested.  Most federal officers know that they must not enforce unconstitutional regulations.
12. The case in Newark, NJ was dismissed.
13. The case in Springfield, MA has been ignored, since no action was taken when Plaintiff was observed by federal officers distributing pamphlets on June 21, 2011.
14.The case in Santa Ana, CA is still in process, but the citation is not for distributing literature, but for failure to obey an order of the officer.
15. The federal defendants claim that the cases were not dismissed because the order is unconstitutional.  However all the courthouse officers except at Manhattan refuse to enforce it.  There appears to be a disagreement among the federal attorneys about the legality of the regulation.
16. The Manhattan federal attorneys are currently prosecuting Plaintiff under 18 U. S.  C. §1504 for jury tampering based on lies told to the Grand Jury.  However they have failed to produce a witness yet.  Our defense team expects this case to be dismissed in the next few months.
17. The federal defendants claimed that they have not been served.  The known police officers and Secretary of the Department of Homeland Security Janet Napolitano were served.  Notarized copies of the service papers are on file with the Pro Se Clerk.
18. However this issue is moot, because Plaintiff has agreed to combine all 12 (now 14) incidents in a revised complaint after he receives the identities of the John Doe defendants from the other attorneys.  They have refused to provide this information.  The court has ignored Plaintiff’s motions to order them to do so.
19. The statement of Karen Smith of the Department of Homeland Security submitted by Assistant U. S. Attorney Pellegrino admits that the four named federal officers were served in their official capacities.
20. In addition both the U. S. Government and the City of New York will be included in the amended complaint to comply the requirement to sue those entities.
    40 U. S. C. §1315 (a) states:

“In General. - To the extent provided for by transfers made pursuant to the Homeland Security Act of 2002, the Secretary of Homeland Security (in this section referred to as the "Secretary") shall protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government (including any agency, instrumentality, or wholly owned or mixed-ownership corporation thereof) and the persons on the property.”

21. Plaintiff posed no threat to the federal buildings, grounds, or property by distributing pamphlets.  Therefore there was no authority transferred to the Department of Homeland Security to arrest or cite him.

 22. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)[1], was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated.  The OPINION of the court was given by Justice Brennan who stated that:

“The Fourth Amendment provides that:

‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .’
In Bell v. Hood, 327 U. S. 678 (1946), we reserved the question whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.”

23. Federal Defendants claim for dismissal rests on federal rules of civil Procedure Rule 12(b)(5 & 6): failure to state a claim upon which relief can be granted.  These rules state:

(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted

24. The question of insufficient service will be remedied when the amended complaint is submitted.
25. The failure to state a claim under which relief can be granted rests on the argument that federal employees and agencies cannot be sued, and that the U. S. government has sovereign immunity.
26. Plaintiff believes that the proper place to settle disputes is in the courts.  However if the case is dismissed for the reason that the defendants cannot be sued because they are immune, then the dispute will have to be settled in the streets by extralegal methods.  That can become quite unpleasant.

CERTIFICATE OF SERVICE

    Plaintiff certifies, under penalty of perjury, that PLAINTIFF’S RESPONSE 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 July 5, 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