Petition for Writ of Certiorari — Kelechi Linardon, Petitioner v. Timothy H. Gailey, Individually and in His Official Capacity as Justice of the District Court of Middlesex County

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Kelechi Linardon

PETITIONER

VS.

Timothy H. Gailey, individually and in his official capacity as

Justice of the Justice of the District

Court of Middlesex County

RESPONDENT (5)

ON PETITION FOR A WRIT OF CERTIORARI TO:

United States Court of Appeals

John Joseph Moakley U.S. Courthouse

1 Courthouse Way,

Boston, Massachusetts 02210

PETITION FOR A WRIT OF CERTIORARI

Kelechi Linardon

P.O. Box 52661

Boston, MA 02205

RECEIVED

DEC - 5 2017

OFFICE OF THE CLEK

SUPREME COURT, U.S.

Question(s) Presented

Does a judge have entitlement to absolute immunity when a judge

denies access to court and violates the rights of party who is

disabled, wheel chair bound, home bound, chronically and severely

ill under 24/7 observation of medical physicians heart monitoring

nursing patients' rights to be deemed medically fit by physician to

stand a civil trial as a defendant under title II of the Americans

with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 et seq. and

the civil Rights Act (42 U.S.C. § 1983)?

Does a judge have the entitlement to absolute immunity when a judge

denials a disabled wheel chaired patient rights to due process and

equal protection under title II of the Americans with Disabilities

Act of 1990 ("ADA") , 42 U.S.C. § 12131 et seq. and the civil Rights

Act (42 U.S.C. §1983)? ..

Does The Rooker-Feldman Doctrine for injunctive relief apply when a

state judge violates a litigant's 14th amendment to the U.S.

Constitution?

Can a state judge be subject to a civil rights suit for violating a

litigant's 1st Amendment engagement in protective conduct, a judge's

retaliation for the exercise of 18t Amendment rights an act taken in

retaliation for the exercise of a constitutionally protected right

is actionable under § 1983?

List Of Parties

] All parties appear in the caption of the case on

the cover page.

TABLE OF CONTENTS

Page

Question(s) Presented

List Of Parties

-

ii

TableOF Contents -----------------------------------------------------------------------------------------iii

IndexTo Appendices ---------------------------------------------------------------------------------------iv

Table OF Authorities Cases

Opinions Below

Statement Of Jurisdiction

Constitutional And Statutory Provisions Involved -----------------------------------------------2

Statement Of The Case -------------------------------------------------------------------------------3

Reasons For Granting The Petition -----------------------------------------------------------------12

Conclusion-----------------------------------------------------------------------------------------------30

Index To Appendices

APPENDIX A:

Decision of the United States court appeals

Appendix B:

Decision of the United States district court appeals

iv

TABLE OF AUTHORITIES CASES

PAGE

22

Al-Ziab v Mourgis, 424 Mass. 847, 850 (1991)

Buckley V. Wolfinger, 18 MDLR 158 (1996) -------------------8

Broad Street Associates v Leine, No. 12-P-2041 (2011)

25

Briscoe v Lahue, 460 US 325, at 346 (1983) -----------------

26

Boston Housing Authority v. Hemingway, 363 Mass. 184, 194 (1973)

23

Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994)

27

.

Conley v. Gibson, 355 U.S. 41, 46, 78 S. Ct. 99, 102 (1957)----

16

Chandler v Johnson, No. 09-P-2272 (2011) ----------------------25

Costa v Fall River Housing, 71 Mass. App. Ct. 269, (2008) ------22

Gauthier v Sunhealth Specialty Servs., Inc., 555 F.Supp.2d 227, 237

(2008) ---------------------------------------------------------24

Gardner v. Pianka, 28 M]JLR 189 (2006) ---------------------------8

Drucker v. Chin, No. 01822 (November 1974) ---------------------24

DiBella v Finumara, 63 Mass. App. Ct. 640, 646 (2005) ---------22

Dolbern v Friedman, No. 10034 (208) ----------------------------25

Estelle v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285, 291 (1976)

16

Feldman v. Jasinski, 2009 Mass. App. Div. 249 (2009) ------------24

Ferranti v. Moran, 618 F.2d 888, 889 (1st Cir. 1980)

-----------16

Flagg v. AliMed, Inc. 466 Mass 23, 28-33 (2013) ------------------24

Forrester v. White, 484 U.S. 219, 224-225 (1988) ----------------27

V

Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 (1972)

---

16

Harris v Harvey, 605 F.2d 330, 335 n. 7 (7th Cir. 1979) ----------26

Jarvis v First Natl. Realty Corp., 428 F.2d. 1071, 1074 (D.C. Cir.

1970) -------------------------------------------------------------22

'kids for cash' scandal

case, Philadelphia, (Jan. 10, 2014) ------28

Mellor v. Berman, 390 Mass. 275, 278 (1983) ---------------------- -25

Morrison v. Lipscomb, 877 F.2d 463 (6th Cir. 1989) ---------------27

Mohamed et al v. Leone, 25 MDLR 110(2003) ------------------------8

Peabody Props., Inc. v. Sherman, 418 Mass. 603

,

608 (1994) ------11

Pulliam v. Allen, 466 U.S. 522 (1984) ----------------------------15

Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 15 L.Ed.2d 597-- 28

Simon v. Solomon 385 Mass 91, 99 (1982) --------------------------25

Stump v. Sparkman, 435 U.S. 349, 356 (1978) ----------------------27

Slyvester Harris v.Richard G. Harvey, Jr., 605 F.2d 330 (7th Cir. 1979)

---------------------------------------------------------27

Vi

Cited Authorities

United States Constitution

14th

1St

Page

Amendment------------------------------------------------Passim

Amendment ----------- -------------------------------------Passim

STATUTES AND RULES

42 U.S.C. § 12131 --------------------------------------------i

42 U.S.C. § 1983 -----------------------------------------------i

42 U.S.C. §3602 -------------------------------------------24

42 U.S.C. § 12102 (2) --------------------------------------

16

42 U.S.C. § 3604 ------------------------------------------- 10

M.G. L. c. 1513, § 4 --------------------------------------10

M.G.L. C 111 §127. ---------------------------------------------

23

M.G.L. c. 93A. ------------------------------------------------

25

M.G.L. c. 186, §15B -------------------------------------------

25

M.G.L. c.151B4(7A) -------------------------------------------

8

M.G.L. c 239 §9-10 --------------------------------------------26

M.G.L. C. 239, §8A --------------------------------------------23

M.G.L. C. 111 §127C-D ----------------------------------------

11

M.G.L. C. 111 §127H -------------------------------------------11

Landlord Survival Guide, GEREB 8th Ed. ------------------------23

Alexander Mitchell-Munevar, GBLS, Chapter 3. ------------------24

Landlord and Tenant Law, Daher and Chopp, 3rd ed., Vol. 33, §10

--

23

Residential Landlord-Tenant Handbook, Flaschner Judicial Institute,

3rd Ed, (2013) § 11.4. ------------------------------------------11

vii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgement below.

OPINIONS BELOW

( x ] For cases from federal courts:

The opinion of the United States court appeals at Appendix A to the

petition and is unpublished.

The opinion of the United States district court appeals at Appendix B

to the petition and is unpublished.

STATEMENT OF JURISDICTION

[ x ] For cases from federal courts:

The date on which the United States Court Appeals decided my case was

July 7, 2017 Appendix B

An extension of time to file the petition for a writ of certiorari was

granted to including December 4, 2017 on October 4, 2017 in

Application No. 17A357

The jurisdiction of this court is invoked under 28 U.S.C. §1254(1)

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

14th

Amendment

All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

16t

Amendment Retaliation

"Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances."

2

Statement of the case

The Petitioner is a disabled home care patient, proceeding pro se and

in forma pauperis in this civil rights action pursuant to 42 U.S.C. §

1983 and title II of the Americans with Disabilities Act of 1990

("ADA"), 42 U.S.C. § 12131 et seq. Plaintiff filed a complaint

commencing this action on November 20, 2015, against Defendant Timothy

H. Gailey, individually and in his official capacity as Justice of the

Massachusetts District Court of Middlesex County. In the complaint

Plaintiff alleges a violation of the equal protection clause and her

right to due process under the United States Constitution. Plaintiff

also alleges causes of action for denial of access to courts under the

First Amendment of the Constitution and retaliation.

Petitioner is a black female and has chronic physical handicap

disability with other medical issues and allergies. Petitioners signed

Standard Form Apartment Lease (Fixed Term yearly) with property owner

dated August, 2013.

BACKGROUND OF THE CASE

Because Middlesex County has not financed a housing court, the summary

process proceedings in this case were held in the Middlesex County,

District Court Department, Woburn Division. Tenant would argue that

had she been able to avail herself of a housing court, there would be

no roadblock in this matter. See Boston Housing Authority v.

Hemingway, 363 Mass. 184 (1972) supra at 210 (Quirico, J. concurring

in part and dissenting in part, joined by Readon and Wilkins, ii).

On or about February 2015, Tenant deducted $400.00 from March's rent

to abate the heating problems that she was consistently reporting

which were caused by defects in the condition of her apartment. Tenant

provided an expert's report showing the problems with her ceilings,

windows, and sliding door. Tenant also provided Landlord with copies

of her heating and gas bills.

Landlord responded, on or about April 21, 2015, by seeking to evict

her through Summary Process despite her having a lease with, at least,

four (4) months remaining. The underlying action relating to this

Summary Process in Woburn District Court is lengthy.

Petitioner suffered racial hate crime and disability

discrimination from the landlord

1. Petitioners was severely bitten /injured in petitioner homes by

rodents which the landlord knew about. This injury leads

Petitioner to be rushed to the hospital urgent care unit on the

3

same day and was treated for the injury. Petitioner's heat which

was paid for by the Petitioners was purposely turned off on

February 15, 2015 by the landlord on the coldest days of the year

which severely affected petitioner's health. The doctor was

called urgently the same day due the severe breathing attack

Petitioners had in the middle of the night which was very

dangerous for a sick disabled homecare patient.

This apartment had many issues; on the first day Petitioner was

trying to move in, Petitioner noticed centipedes before Petitioner

even put her belongings in. Petitioner was infested with

centipedes that crawled through her belongings, which made her

worried to even keep her food out. When Ms. Noke came into

Petitioners home in 2013, Petitioner even showed her several of

the centipedes. A few months after moving in, Petitioner came

home and noticed a large crack on the front door cage. When

Petitioner opened her door, she noticed large cracks running along

the ceiling and walls. Petitioner went into her bathroom and also

noticed large running cracks on the floor. All of these occurred

on the same day, which were serious concerns. Petitioner contacted

the landlord and spoke to Ms. Noke. She responded by stating "it

is sinking again". I was very shocked to hear this and immediately

asked her what she meant by that. She was very rude and defensive.

None of the above-mentioned issues were disclosed to Petitioner

before moving into this apartment, which was very disturbing and

stressful.

During the same period, Petitioner's keys to front entrance door

could not open the door, which several individuals tried very hard

to open, but couldn't open using my key. Sometimes Petitioner was

locked out at night and needed to wait for other tenants to let

her in, which was very humiliating and exhausting. After several

instances of this problem, I contacted the office and it was the

community gate security guard who answered. The guard tried to

open the door that night with my key. He couldn't open it either,

and came back after few hours to bring me a new and working key.

The maintenance manager of petitioner's rental property threatened

me with physical harm in petitioner home in the past in front of

petitioner's guest as retaliation against petitioner for reporting

to the Board of Health regarding petitioner's apartment winter

repair condition which is not conducive to petitioner handicap

conditions. He was very angry when he came into petitioner home and

verbally abused Petitioners stating that I should move into a

nursing home since I am disabled handicap person, that this place is

not for me, I didn't belong here and your kind, do not belong here

and that Petitioners is the bad luck of the apartment. He said that

the wealthy landlord owned the city, the town hall, and the police

department, that they have been in the town longer than I and that I

am wasting my time with my complaints. He also said to petitioner

that women complain a lot and that Petitioner is a horrible tenant

4

and many more statements which amounted to verbal abuse of

petitioner. The maintenance manager then followed up with

threatening me with physical assault. The maintenance manager said

that when he is angry he does two things, smokes tobacco or hits his

wife and that he wasn't going to smoke but that he would hit me.

Petitioner's guest then asked him "so you are going to hit her in

front of me a sick patient"? Petitioner filed a report with the

police regarding the threat. The police didn't do anything because

they knew them as the bragged that they owned the town, the police

and the local court house. The Petitioner was afraid for her safety

which is also why petitioner sent them a letter and avoided them due

to the bodily threat and intimidation and harassment including the

fact that petitioner isolated herself in her home while the manager

was using the building and gate security camera as a surveillance

camera to stuck and invade the petitioners privacy, peace of mind

and quiet enjoyment of her home for almost about a year.

Petitioner was constantly retaliated against (bullying, harassment,

and invasion of privacy, insults, emotional and verbal abuse) by the

landlord management since Petitioner's complaint at a government

public agency. The law in Massachusetts presumes that the landlord

has a retaliatory motive if the landlord commences an eviction or

increases the rent within six months after the tenant has exercised

any of the following tenant rights: Using the repair and deduct

remedy, or telling the landlord that the tenant will use the repair

and deduct remedy; Complaining about the condition of the rental

unit to the landlord, or to an appropriate public agency after

giving the landlord notice; beginning arbitration based on the

condition of the rental unit; The punishment Petitioner received

from the landlord included those listed above. The landlord

management violated the housing Act by using self-help tactics

including harassing, evicting and discriminating against me because

Petitioner exercised her legal rights protected by the Act including

opposing practices that are unlawful under the Act; Informed law

enforcement officials of practices that the person believes are

unlawful under the Act.

The Petitioner exercised her tenants' rights after she made several

requests to the landlord to repair the defects repair in her home

which they refuse to repair. Petitioner also made several attempts

to the city board of health to inspector, to come and inspect her

home and the inspector also refused to inspect petitioners home

because he knows the landlord and are close friends with the

landlord. The landlord failed to disclose the serious inhabitable

defects in petitioner's apartment during the rental process.

Petitioner deducted the sum of $400 which was a small portion of her

monthly rent from my March 2015 month rent for needed winter repairs

which the landlord refuse to repair by failing to perform his duties

as a landlord for almost two years. Petitioner started making this

61

repair request since 2013 and yet Petitioner continued paying full

the rent. In 2015, Tenant provided an expert's report showing the

problems with her ceilings, windows, and sliding door. Tenant also

provided Landlord with copies of her heating and gas bills. Landlord

denied Tenant's allegations.

The landlord attempts to wrongfully evicted Petitioner because of

$400 which she rightfully deduction from her monthly rent while she

was still paying full rent till December 2015 same month of the

eviction is an act of retaliation because petitioner made a

complaint at the HUD. The landlord wrongful eviction actions are

based on a discriminatory motive because Petitioner engaged in the

protected activity, and the landlord's conduct is retaliatory. The

landlord refuses to provide services to Petitioner home while

providing services to other tenants when Petitioner was paying

monthly rent. Petitioner watched many times the landlord maintenance

workers knock/enter from door to door neighbor's home for

maintenance services and they skip and walked past Petitioner home

intentionally. The landlord intentionally refused and neglected to

properly address and repair the inhabitable issues in a Petitioner

home for a long time, even after several requests from the

petitioner which is violation of the leasing contract agreement

entered with Petitioner as the tenant.

The landlord is in violation of Chapter 93A of the Massachusetts

General Laws "Consumer Protection Law." and the M.G.L., c. 186

According to the M.G.L., c. 186, Structural Elements: Landlords must

maintain the foundation, floors, walls, doors, windows, ceilings,

roof, stairwells, porches, chimneys and all structural elements so

as to exclude wind, rain, and snow; so as to be rodent-proof,

weather tight, watertight, and free of chronic dampness, in good

repair and fit for human habitation at all times. Petitioner as a

tenant and customer is entitled to a safe and habitable living

environment throughout my entire tenancy. No one deserves to have

inhabitable safety conditions in their home leading to bodily harms

in a place that they are paying a lot of money for rent and

utilities. The landlord failed to disclose the serious defects in

Petitioner apartment during the rental process, which makes it an

unfair and deceptive act and according the law: (1) Conditions and

Maintenance of a Dwelling Unit. It shall be an unfair or deceptive

act or practice for an owner to: (a) Rent a dwelling unit which, at

the inception of the tenancy 1. Contains a condition which amounts

to a violation of law which may endanger or materially impair the

health, safety, or well-being of the occupant; or 2. is unfit for

human habitation; (b) Fail, during the terms of the tenancy, after

notice is provided in accordance with M.G.L. c. ill, S. 127L, to 1.

Remedy a violation of law in a dwelling unit which may endanger or

materially impair the health, safety, or well-being of the occupant,

or 2. maintain the dwelling unit in a condition fit for human

habitation; provided, however, that said violation of law was not

caused by the occupant or others lawfully upon said dwelling unit;

(c) Fail to disclose to a prospective tenant the existence of any

condition amounting to a violation of law within the dwelling unit

of which the owner had knowledge or upon reasonable inspection could

have acquired such knowledge at the commencement of the tenancy; (d)

Represent to a prospective tenant that a dwelling unit meets all

requirements of law when, in fact, it contains violations of law;

(e) Fail within a reasonable time after receipt of notice from the

tenant to make repairs in accordance with a pre-existing

representation made to the tenant; (f) Fail to provide services

and/or supplies after the making of any representation or agreement,

that such services would be provided during the term or any portion

of the term of the tenancy agreement; (i) Fail to comply with the

State Sanitary Code or any other law applicable to the conditions of

a dwelling unit within a reasonable time after notice of a violation

of such code or law from the tenant or agency. Chapter 93A of the

Massachusetts General Laws commonly called the "Consumer Protection

Law." it prohibits the use of any unfair and deceptive acts and

practices in the conduct of any trade or business. Renting housing

is generally considered to be a trade or business, and the

Massachusetts Attorney General has issued regulations which define

unfair and deceptive acts or practices in the rental housing field.

Among the things that constitute an unfair practice is if landlord

fail to disclose to a tenant or prospective tenant any fact the

disclosure of which may have influenced the tenant not to enter into

the transaction. Also listed as an unfair practice is any violation

of any law meant to protect consumers and any act which is

oppressive or otherwise unconscionable in any respect. According to

Supreme Judicial Court Boston Massachusetts on Gender, Racial,

Ethnic Equality in court it state, "Courts must take special care to

treat all victims of crime with respect and sensitivity to the

trauma that they have experienced." Petitioner has been a victim of

punishment, torture and trauma from the time petitioner notified the

HUD regarding the landlord matters.

Landlord did discriminate against Petitioner and failed to

accommodate Petitioner disability and handicap medical condition.

Petitioner's landlord refused to make several repairs in petitioner

home which caused Petitioner several bodily harm knowing that

7

Petitioner was a handicap patient, they refused to modify petitioner

home to meet ADA accommodation rules and requirements for handicap

accessible housing for a disabled person including the fact that

petitioner suffered severe slips and falls in her bathroom for not

having a ADA bathroom.

11. In petitioner's complaint, petitioner contends that during 2013

petitioner asked for reasonable modification accommodations in her

home and an accommodation regarding the weatherproofing of the

windows and sliding doors to keep the cold air out due to Petitioner

medical condition. Landlord told petitioner that they are very good

for winter and energy saving, but that was not true the landlord

obviously did not conduct a move in ready inspection check list

repairs as prescribed by the law, to properly prepare the apartment

for a new tenant to move in. Landlord said that the accommodation

would not be required because the apartment already met the

accommodation request. In addition to the request for

weatherproofing the windows and sliding doors, Petitioner asked for

an accommodation regarding the infestation of insects in her home,

to which Petitioner is allergic to. Petitioner accommodation request

was reasonable and Landlord did not respond in a reasonable time

frame because of a "big job" Landlord was involved with. M. G. L.c.

1513 § 4(7) prohibits discrimination in the terms, conditions and

privileges of housing accommodations because of handicap. G.L. c.

151B54(7A) states that discrimination on the basis of handicap

includes (1) a refusal to make, at the expense of the handicapped

person, reasonable modification of existing premises occupied or to

be occupied by such person if such modification is necessary to

afford such person full enjoyment of such premises. In the case of

publicly assisted housing or contiguously located housing consisting

of ten or more units, reasonable modifications must be at the

expense of the owner or other person having rights of ownership.

M.G.L. c.151B4(7A). In order to establish a prima facie case of

handicap discrimination in housing, Petitioner must demonstrate that

(1) she suffers from a handicap as defined by the statute; (2) that

Landlord knew of Petitioner handicap or could be reasonably expected

to know of it; (3) that the accommodation sought may be reasonably

necessary to afford Petitioner an equal opportunity to use and enjoy

the premises; and (4) that Landlord has refused to make the

requested accommodation. Buckley v. Wolfinger, 18 MDLR 158 (1996).

When Landlord fails to rebut Petitioner claims, Petitioner need only

establish a prima facie case of housing discrimination in order to

prevail. See, e.g. Mohamed et al v. Leone, 25 MDLR 110(2003);

Gardner v. Pianka, 28 MDLR 189(2006).

8

Here, Petitioner made Landlord away of Petitioner disability

immediately and immediately asked for accommodations for the

disability. Petitioner provided the Landlord with reasonable

accommodations needed, explaining that her disabilities and medical

breathing condition required the carpet to be thoroughly cleaned,

the curtains be free of dust, a roll-in shower with completely a

flat entrance for wheelchair roll-in, grab bars in the shower, hand

held shower head, ADA taller toilet with grab bars, Reachable lower

bathroom floating sink with opening to allow wheelchair to roll-in,

remove and flatting or level the room transitions (entrance door,

bedrooms door and bathrooms door), double door fridge, Modify

kitchen for ADA, lowered for wheelchair height, the front entrance

door pick-hole because of her physical disability, and the floor

needed to be continuance or have a ramp like connection to

accommodate her mobility equipment's wheelchair/walker. Since the

complaint, the petitioner have been aggressively harassed, bully,

retaliated and discriminated by the landlord including deprivation

of service as they provide to other tenants, petitioner private

affairs has been put in the public as a method of humiliation which

caused Petitioners a lot of health trauma and emotional distress.

The Landlord also intruded petitioner solitude and seclusion and

violated petitioner right to privacy since the petitioner moved into

apartment in the community which has caused her a lot of traumatic

stress sometimes. The landlord has been evading petitioner privacy

with the community security cameras and using the security guards at

the gate to harass me, petitioner guests, discussing petitioner

affairs with neighbors and having petitioner neighbors who are her

friends keep track of petitioner every step she take to the point

Petitioners have become a prisoner in petitioner home. Petitioner

private has been constantly violated to the point that Petitioners

couldn't even call ambulance when she have emergency for the fear of

petitioner privacy been publicize as the landlord has done several

times. The stress and traumas Petitioners went through from the

landlord has affected petitioner daily life. Due to the gross

invasion of privacy by the landlord with the surveillance camera use

in tracking petitioner every movement, the oppression of the

landlord to the Petitioners was so severe to the point that

Petitioners can't even, open petitioner curtain most of the times.

The landlord's wrongful eviction actions were based on a

discriminatory, racial hatred motive because Petitioner engaged in

the protected activity, and the landlord's conduct was retaliatory.

Petitioner has been discriminated against, and the landlord violated

the discrimination laws. Petitioner was a victim of punishment by

landlord as a result of exercising petitioner tenant legal right.

Petitioner has been discriminated against, and violated so much by

the landlord due to the fact that petitioner's health was constantly

at risk due the inducing stress. Petitioner's landlord had been

trying to evict her since petitioner complaint to HUD even though

petitioner payed rent and did not bother anybody just because she

engaged in the tenant protected activity by asking the landlord to

make repairs in petitioner's home and to stop evading petitioner

privacy.

14. Petitioner's landlord property manager publicly slandered and

defamed petitioner name, and harassed Petitioner at home which

prevented Petitioner from having peace of mind and enjoyment of

petitioner home that she was paying to rent. She targeted

Petitioner with ill hatred and malice because Petitioner refused to

allow petitioner's landlord to prey on petitioner's private affairs

and invade petitioner space which she decided to use a different

method (eviction) to taint and publicly humiliate me. Petitioner's

landlord property manager Ms. Eddie Noke came to petitioner's home

while Ms. Noke was intoxicated with Marijuana smell. She demanded

to talk about petitioner's private affairs which petitioner refused

to do and informed Ms. Noke of her right to privacy. While the

Petitioner not knowing at the that time of Ms. Noke dangerous

obsession for the Petitioners ex-partner, Ms. Noke insisted, making

obsessive remarks and demanded that petitioner should bring

petitioner's ex-partner back home. However Petitioner refused to do

so and asked Ms. Noke to leave her home. In response she threatened

petitioner that she is the kind of woman that doesn't back down on

what she wants. She claimed they owned city officials and as a

tenant petitioner's life would be miserable if she didn't bring her

ex-partner back or discuss her private affairs. Ms. Noke's gross

obsession was very uncomfortable, dangerous and unsafe for the

petitioner.

In Petitioner letter dated March 1, 2014, Petitioner stated that she

needs "an expedited resolution so that she can be able to heat

petitioner's home properly and be comfortable", which shows that

Petitioner continued to remind Landlord of accommodation request.

Landlord's reply was that Petitioner should go to a nursing home.

Landlord did not want to accommodate Petitioner disability and medical

conditions. Landlord knew Petitioner had a physical impairment which

substantially limited one of more of Petitioner's major life

activities. The impairments are recorded and Petitioner had brought

up the disability and other medical conditions to Landlord.

Discrimination prohibited by the Fair Housing Act includes the

"refusal to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary to

afford [a handicapped] person equal opportunity to use and enjoy a

dwelling." 42 U.S.C. § 3604 (f) (3) (B) See M.G. L. c. 1513, § 4 (7A)

(2) Here, the Petitioner has provided sufficient and substantial

evidence that Landlord refused to make reasonable accommodations that

would be necessary to afford Petitioner equal opportunity to use and

enjoy the apartment.

.

.

10

Landlord did not accommodate the Petitioner request that impacted

Petitioner disability and medical condition. Chapter 151B, Section 4

Paragraph 7a pertains to persons with disabilities. It describes what

are reasonable modifications and reasonable accommodations and defines

the discrimination involved when an owner refuses to make these

changes. Here, Petitioner provided sufficient and substantial evidence

that Landlord knew that Petitioner apartment was cold and that cold

was impacting Petitioner disability and medical conditions and failed

to adjust and fully correct the reasonable accommodations. "A

'reasonable accommodation' is one which would not impose an undue

hardship or burden on the entity making the accommodation." Peabody

Props., Inc. v. Sherman, 418 Mass. 603 , 608 (1994).

When temperatures are low, the cold air can take Petitioner breath

away. In fact, it can do a number of harmful things to Petitioner

lungs. But there are ways to protect Petitioner lungs and other

medical conditions. Non-disabled residents of the complex can easily

open and close heavy curtains that would have helped alleviate, but

not solve, the cold air from entering from the sliding doors and other

areas of the apartment. By contrast, Petitioner was unable to do so

without assistance or straining, falling and aggravating her

disability. Otherwise, Petitioner would have had to live without

natural sunlight from the sliding door. The accommodation requested

should be recognized as "reasonable" under c. 151B, section 4(7A)

Landlord made this matter into "unhappy" tenant that should be ignored

instead of taking time to explore the scope of Petitioner handicap as

well as the availability and feasibility of various accommodations.

Landlord was discriminatory against

Petitioner based on Petitioner disability, medical conditions, sex and

marital status.

Tenant respectfully submits that the Woburn District Court (Gainley,

J.) through its orders and decisions effectively eviscerated the

Summary Process as that codified process has been ruled upon by the

Supreme Judicial Court and by this Court. See M.G.L. c. 239 §8A;

M.G.L. c. 111 §127C-D; see also M.G.L. c. 111 §127H. Tenant argues

that she satisfied her obligations of rent payment under her lease.

Tenant contends that the Woburn District Court violated her statutory

and constitutional rights, both State and Federal, by allowing her to

be evicted despite her lease through Summary Process. See also

Residential Landlord-Tenant Handbook, Flaschner Judicial Institute,

3rd Ed, (2013) § 11.4.

Retaliation and Discrimination: State law makes it illegal for the

landlord to threaten to take any action against a tenant for engaging

in the following "protected activities": Notifying your landlord in

writing of violations of the state Sanitary Code; Reporting your

landlord to health inspectors, local boards, or other officials for

violations of law.

11

The Landlord's retaliated and discriminated against petitioner for

reporting to the Board of Health regarding her apartment winter

repair condition and problems. It is illegal for a landlord to

retaliate against a tenant in Massachusetts, who has exercised a

legal right, including: complaining to the landlord about unsafe

living conditions, complaining to a government agency, such as a

building or health inspector, about unsafe living conditions.

Massachusetts State Laws prohibit Landlord Retaliation. Landlord

violated my right to be free from retaliation and discrimination, for

exercising my legal rights. By law, a landlord cannot try to evict a

tenant, raise the rent, or change the terms of the tenancy because

the tenant has complained of conditions to the landlord in writing,

or to any government agency, or because the tenant has organized or

joined a tenants, union or engaged in certain other protected

activities. Yet Judge Gailey didn't give Petitioner a chance to be

deemed medically fit to stand a hearing before he unfairly sanctioned

me and entered a default judgement while Petitioner was in the

hospital for been severely sick and under medical treatment health

monitoring evaluation. Judge Gailey engaged in abuse of power and

intentional disregard of the Constitution and laws he swore to

defend. Petitioner alleges that judge Gailey has engaged in conduct

that is in violation of the US Constitution and "prejudicial to the

effective and expeditious administration of the business of the

courts. A judge should strive to maintain confidence in our judicial

system, but Judge Timothy Gailey's willful misconduct in office,

conduct that is prejudicial to the administration of justice actions

destroy confidence in the judicial system. Judge Gailey deprived

Petitioner of her right to due process, equal protection,

discriminated against her, violated her constitutional rights and

showed an evidence and pattern of behaving or ruling in a manner that

is prevented or hindered her from receiving full, fair, impartial

hearings or the full, fair, impartial administration of justice.

REASONS FOR GRANTING THE PETITION

TO THE HONORABLE COURT:

Comes Now the petitioner, very respectfully alleges and prays as

follows:

1. INTRODUCTION

12

This action is brought the petitioner against Judge Timothy H.

Gailey, individually and in his official capacity as Administrator of

the Judicial System.

The memorandum from the federal judge in this matter brought to the

appeals court stated that "the actions of the respondent who is also a

judge were judicial acts entitling him to absolute immunity from suit

and that under the Rooker-Feldman doctrine, a federal court lacks

jurisdiction over a final judgement of the state.

The Petitioner alleges a violation of title II of the Americans with

Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 et seq.

Respondent has moved to dismiss on several grounds. The Petitioner

alleges a violation of the Civil Rights Act (42 U.S.C. § 1983) The

Petitioner alleges a violation of 14th amendment to the U.S.

Constitution. The Petitioner alleges a violation of 1st Amendment to

the U.S. Constitution. The Petitioner urges the Court to grant

certiorari, because contrary to the basis on which the respondent

seeks such dismissal:

.

Plaintiff has pleaded a prima facie case under title II of the

ADA.'

Congress has specifically abrogated the States' eleventh

amendment immunity for suits brought pursuant to the ADA;

Under title II of the ADA the defendants can be sued in their

official capacities; and

Judges do not enjoy absolute immunity for acts that are

administrative rather than judicial in nature.

Review is warranted to determine if the respondent acts were

Judicial Acts entitling him to absolute ixtimunity.

FACTS AND PROCEDURAL HISTORY

District Court (Gainley, J.), acting as a Housing Court, erred as a

matter of law or as matter of abuse of discretion when he allowed

Appellee Landlord/Plaintiff! Cliff side Realty Trust (hereinafter

"Landlord") to evict Appellant Tenant/'Defendant/'Linardon (hereinafter

"Tenant")

Pursuant to Mass. App. P 16(d), the parties are hereinafter designated

by the category to which that party belongs, e.g., Tenant and

Landlord.

A. Did the Woburn District Court (Gainley, J.), acting as a Housing

Court, err as a matter of law or as matter of abuse of

13

discretion when it denied Tenant's Motion to Amend Complaint on

or about August 28, 2015, to include Tenant's claims of racial

and disability discrimination, among others.

1. Cana state judge be subject to a civil rights suit for violating a litigant 15t Amendment

engagement in protective conduct, A judges retaliation for the exercise of l

Amendment rights an act taken in retaliation for the exercise of a constitutionally

protected right is actionable under § 1983?

B. Did the Woburn District Court (Gainley, J.), acting as a housing

court, err as a matter of law or as matter of abuse of discretion

when it denied Tenant's motions to postpone her appearances in

court and at her deposition due to medical emergency on or about

May 14, 2015, August 27, 2015, September 24, 2015, and on October

15, 2016.

2. Does a judge have the entitlement to absolute immunity when a judge denials a disabled

wheel chaired patient rights to due process and equal protection under title II of the

Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 et seq. and the Civil

Rights Act (42 U.S.C. § 1983)?

C. Did the Woburn District Court (Gainley, J.), acting as a Housing

Court, err as a matter of law or as matter of abuse of discretion

when it granted Landlord's Motion for Sanctions finding that

"Tenant without just cause refused to attend her deposition

I find the doctor's [sic] note totally conclusory and no way

excusing her failure to show any effort to comply with [the

Court's orders]" on or about September 24, 2015.

3. Does a judge have the entitlement to absolute immunity when a judge denies access to

court and violates the rights of party who is disabled, wheel chaired, home bound,

chronically and severely ill under 24/7 observation of medical physicians heart

monitoring nursing patients' rights to be deemed medically fit by physician to stand a

civil trial as a defendant under title II of the Americans with Disabilities Act of 1990

("ADA"), 42 U.S.C. § 12131 etseq. and the Civil Rights Act (42 U.S.C. § 1983)?

D. Did the Woburn District Court (Gainley, J.), acting as a Housing

Court, err as a matter of law or as matter of abuse of discretion

and retaliation when it Defaulted and ordered the wrongfully

eviction while still paying rent due to the Tenant filling a

complaint against the (Gainley, J.) at the Federal Court prior to

the eviction date?

4. Cana state judge be subject to a civil rights suit for violating a litigant's 111 Amendment

engagement in protective conduct, a judge's retaliation for the exercise of 15t

14

Amendment rights an act taken in retaliation for the exercise of a constitutionally

protected right is actionable under § 1983?

Can a judge get immunity if you were deprived of your civil rights?

This action was brought under the Civil Rights Act (42 U.S.C. § 1983)

and under violation of title II of the Americans with Disabilities Act

of 1990 ("ADA"), 42 U.S.C. § 12131 et seq. Petitioner has pleaded a

prima facie case under title II of the ADA. The Court first had to

decide whether a state judge could be subject to a civil rights suit

for an injunction in the first place under Suit Used 1871 Rights Act

Usually referred to as Section 1983, this law permits suits for

damages or injunctive relief against those who, under color of state

law'' violate an individual's civil rights. Congress has specifically

abrogated the States' eleventh amendment immunity for suits brought

pursuant to the ADA; Under title II of the ADA the defendants can be

sued in their official capacities; and Judges do not enjoy absolute

immunity for acts that are administrative rather than judicial in

nature. Judges who are sued under 42 U.S.C. § 1983 are completely

immune from individual liability for damages resulting from their

"judicial acts." Judges are not immune from 1983 suits seeking some

kinds of injunctions. See Pulliam v. Allen, 466 U.S. 522 (1984)

Whether something a judge does should be considered a "judicial act"

depends on "whether it is a function normally performed by a judge."

Stump, 435 U.S. at 362. The immunity depends on whether the person was

acting in his or her official capacity and whether s/he had any reason

to know that his or her action would violate an individual's federally

protected rights.

This case requires the review of the scope of a judge's immunity

on damage liability when sued under 42 U.S.C. § 1983.

Judicial immunity also bars suits that are brought under 42 U.S.C. §

1983 but there are two exceptions to absolute judicial immunity: (1)

when the judge's actions are taken outside his role as a judge, i.e.,

entirely non-judicial conduct, or (2) when the judge's actions are

taken in the complete absence of jurisdiction. Washington, May 14,

1984— The Supreme Court ruled that state judges may be sued for civil

rights violations and may be ordered to pay the lawyers' fees of those

who sue them successfully. Washington, Jan. 12, 1988— The Supreme

Court ruled 8 to 0 that state court judges may be sued on allegations

of discrimination or other illegality in the demotion or dismissal of

court employees.

1. ARGUMENT

15

Petitioner Has Alleged a Prima Facie Case Under Title II

of the ADA

Despite Respondent' contentions, there is no question that

Petitioner has sufficiently pleaded a prima facie case of

discrimination under title II of the ADA. A complaint should not be

dismissed for failure to state a claim unless it appears beyond doubt

that there is no set of facts that plaintiff could prove which would

entitle him to relief. Conley v. Gibson, 355 U.S. 41, 46, 78 S. Ct.

99, 102 (1957); Fed. R. Civ. P. 12(b)(6). Further, pro se complaints

must be liberally construed and should not be held to the same high

standard as formal complaints filed by attorneys. Estelle v. Gamble,

429 U.S. 97, 105, 97 S. Ct. 285, 291 (1976); Haines v. Kerner, 404

U.S. 519, 520, 92 S. Ct. 594, 595 (1972); Ferranti v. Moran, 618 F.2d

It is under this more lenient standard that

888, 889 (1st Cir. 1980)

Petitioner's complaint should be read.

.

Title II of the ADA provides that "no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by

any such entity." 42 U.S.C. § 12132. The statute defines the term

"qualified individual with a disability" as "an individual with a

the provision of right to be

disability who, with or without

medically deem fit for a chronic nursing home disabled patient under

medical observation by a certified doctors and services, meets the

essential eligibility requirements for the receipt of services or the

participation in programs or activities provided by a public entity."

See 42 U.S.C. § 12131(2).

.

.

.

In the case at bar, petitioner easily satisfies the prima facie

elements for her cause of action under title II of the ADA. Petitioner

has averred that she has a chronic disability was under a serious

medical observation on 27/4 heart monitoring device, that her doctors

provided support medical documents to the Petitioners lawyer as

requested by the court to be excused from any court hearing which

would affect her critical 24/7 heart monitoring observation until

medical deem fit to come to court as the defendant. Read liberally,

as the complaint must be, Petitioner has sufficiently alleged that she

is an "individual with a disability" under title II. See 42 U.S.C. §

12102(2). In addition, plaintiff has clearly alleged that she was

"qualified," because she has stated that she was a defendant in a case

before Judge Gailey from which it follows that petitioner met the

essential eligibility requirements to be medically excused to deem fit

by physicians to participate in her trial. Finally, Petitioner has

alleged that she was discriminated against by respondent. She alleged

that her request and was denied of a due process, and was defaulted by

the respondent even though the petitioner had a lawyer and provided

medical physicians letters on time to the court there by rendered

unable to effectively participate in her own trial. Plaintiff has

therefore alleged that she was "excluded from participation in or

16

denied the benefits of" defendants' program. 42 U.S.C. § 12132. Thus,

petitioner has pleaded her prima facie case.

2. ARGUMENT

A proverb by Benjamin Franklin says

"For the want of a nail, the shoe was lost, For want of a shoe, the

horse was lost,

For want of a horse, the rider was lost,

For want of a rider, the battle was lost,

For want of a battle, the kingdom was lost,

And all for the want of a horseshoe nail."

What would have been said here, in 2016, when, "for want of $400.00,

a chronic ill home bound nursing disabled patients Tenant's home was

lost while never missed paying rent"?

What would have been said here, in 2016, when, "for want of $400.00,

a chronic ill home bound nursing under medical observation 27/4

heart monitoring chronic disabled patients Tenant's life would have

ended prematurely on December 17, 2017(had It not been that her

relatives was present witnessing) under the order of Judge Gailey in

malicious retaliation and racially acts motivated hate crime and

committed outside of his jurisdiction. The petitioner is a good

contributor and a positive role model in society, non-violent,

humanitarian, an advocate of elderly and disabled, human rights that

never harmed a soul in her life.

C. On December 17, 2015, Judge Gailey in retaliation for filing this

complaint maliciously evicted the plaintiff from her home while she

was still paying rent and furthermore used the local police

department with whom he conspired with the rich real estate

landlord(who claimed to own every officials in the city) committing

a deadly racial hate crime, evicting with excessive force, police

brutality and attempted murder claiming that the petitioner who was

very ill on a heart monitor, who was inside her own home on that

day was "trespassing and more including down-pack wrongful malicious

bad faith retaliation accusations" and permanently traumatized till

present a chronic sick disabled heart monitoring patient in her home

which petitioner was rushed by Ambulance to the hospital with life

threaten trauma caused by the brutality on same day, while she was

still paying rent. The argument is that the alleged conduct was not

judicial in nature and that the lawsuit should proceed.

The First Amendment protects the right to be free from

government abridgment of speech. Retaliation for the exercise of

First Amendment rights is a blackletter constitutional

violation. In fact, an act taken in retaliation for the exercise

17

of a constitutionally protected right is actionable under § 1983

even if the act, when taken for a different reason, would have

been proper.

d. What would have been said here, in 2016, when, "for want of $400.00,

a chronically ill home bound nursing disabled patients Tenant has

been homeless for the past two years and suffered serious setbacks

and physical injuries, infections, debilitating health conditions

while displaced under Judge Gailey engagement in actions to

interfere with the Petitioner legal duty imposed on the litigant by

the Appellate Court, engaged reckless endangerment of a handicapped

person's life, aided and abetted the police officers to physically

harm and traumatized a sick disabled person in her home conspired

with a local wealthy developer landlord to abuse a disabled person

of color tenant, and conspired with the landlord in the case in

preventing petitioner's constitutional right to appeal his wrongful

decision to the appeals court.

Review is warranted to determine if The Rooker-Feldman

Doctrine for injunctive relief applies when a state judge

violations a litigant 1st and 14th amendment to the U.S.

Constitution

The respondent alleged that the captioned case is barred against him

under The Rooker-Feldman Doctrine. Based on the language of the

ADA, respondent argument is without merit.

§ 1983 allows for injunctive relief against a judicial officer where

declaratory relief was violated or where declaratory relief was not

available. However, the Rooker-Feldman Doctrine does not bar suits

for damages under title II of the ADA Considering the motions for

accommodations and the refusal of the court to certify it for

interlocutory appeal, an argument can be made that declaratory

relief was not available. With respect to accessing judicial

services, persons with disabilities are looking at fundamental

rights or at the very least something higher than rational basis.

Therefore, there simply cannot be a compelling reason or even a good

reason to deny a person with a disability trying to access judicial

services the accommodations/modifications he or she is entitled to

under the ADA. Accordingly, such a denial is a violation of the 14th

amendment to the U.S. Constitution. It seemed out of place for a

district court judge to self-diagnose a patient when he is not a

certified medical doctor or to ask a patient to come to court to be

self-diagnose her when she is not a medical doctor either and he did

not care about certified doctors opinion or restrictions or even

contact the physician if needed directly if he needed for further

clarification. A patient/defendant should not be punished or

sanctions by a judge for been critically sick beyond her control

when the Judge (Gailey) himself who is a human too could be sick at

anything and would not want his civil rights and constitutional

rights violated with unnecessary harsh punishment for been ill.

18

The Respondent violated the Petitioners civil rights and First

Amendment on retaliation while the Petitioner engaged in protected

conduct. The Respondent adverse action was taken against the

Petitioner that would deter "a person of ordinary firmness" from

continuing to engage in that speech or conduct. The adverse action was

motivated by the Petitioner's protected conduct. First Amendment

retaliation claims have been recognized where:

• "a tavern owner and its manager were harassed following complaints

they made to city officials, including harassment by prolonged and

conspicuous presence, affecting business volume, by city's law

enforcement.

• "a bungalow owner's building permit was revoked immediately after

the town learned that the owner would not dismiss his federal

lawsuit against it. ,,

• "a civil-engineering firm, which specializes in designing and

installing alternative subsurface sewage disposal systems,

criticized the Department of Sewage Disposal Management and then

license revocation proceedings were initiated against it."

• "after homeowners petitioned the city council (and distributes

fliers and letters) to complain about fencing and tree requirements,

the city's building inspectors refused to grant the homeowners an

extension of their building permit and failed to provide the

plaintiffs with notice that their permit was about to expire even

though such notice was routinely given to other similarly-situated

property owners."

• "a tow-truck operator criticized the police department, which then

removed his towing company from the department's approved towing

list. 11

The Respondent Judge Gailey conspired with the local wealthy developer

landlord to engage in actions with initimidation of inferiority,

superiority to infringement on petitioner's civil liberty and

interfere on Petitioner constitutional rights in order to block any

future liability for offenses that they committed against the

petitioner which many of these offenses resulted in physical harm and

property harm to the Petitioner. The respondent's actions were

unconstitutional, a derivation of equal protection under the law, and

an attempt to intimidate the petitioner without any basis. The

Respondent Judge Gailey conspired with the local wealthy developer

landlord in retaliation for the police complaint in past made against

the maintenance manager of petitioner rental property who threatened

petitioner of physical harm in petitioner home in the past in front of

petitioner's guest as retaliation against petitioner. Every citizen

has the right if there is a question of an injustice, especially in

matters involving federal protection laws (such as discrimination,

obstruction of justice, bullying and stalking, slander and defamation,

abuse of power, abuse of discretion, physical abuse, racism, abuse of

a disabled, violation of civil rights and many more). The Petitioner

has a right to be protected by the same law, to be free from racial

abuse, retaliation, harassment, slander, defamation, severe threat on

19

her life, well- being, and threats on her ability to live as a free

human being, to be safe as a free human being and as person created

equal. The respondent's eviction actions in the local court

(petitioner is the defendant in that case) were based on a

discriminatory, retaliation, racial ill hate personal motive because

the petitioner engaged in protected activity, and the defendant's

conduct was retaliatory and in violations of the 1st amendment.

What would have been said here, in 2016, when, "for want of

$400.00, a chronic ill home bound nursing disabled patients Tenant's

suffered a wrongful complaint filed against her through the Petitioner

was the victim which was ordered by the Respondent. On or about May

2016, Petitioner was made aware for the first time, that Judge Gailey

maliciously in retaliation for filing this complaint to this federal

court and appealing his decision, he had the local police department

brutalized a very sick patient (Petitioner) in her home and

traumatizing her in front of her realtives while or a wheel

chair/walker and a holder of a heart monitor. The police in a mostly

white majority town, followed his order because the local police

department (whom the landlord claimed that he owned), had always

targeted the petitioner in revenge.

This revenge which is still current and ongoing while petitioner is

still displaced from home was done because; petitioner had spoken and

stood up against elderly who was been abuse by the police in the past.

Petitioner had acted as an disabled advocate and human rights person

showing how the police abused an elder civil servant with advanced

dementia, a disabled person of color whom they publicly in the

apartment compound in front of other tenants, emotionally humiliated

and abuse after they called me to come and claim him because he simply

lost his way in the apartment compound and they thought that he was my

dad just because he was another black person but he was a parents to

the second and only other former black tenants(landlord also removed

them on racial housing discrimination even though their family was

hard working professional people), in the apartment complex. This act

in the past was conduct without even a single respect for an elderly

or a dementia person. This abuse lasted for about one hour on that

day which was very humiliating. Judge Gailey, "acting in his official

capacity as judge under color of law as he claimed," maliciously and

without a proper probable cause issued a wrongful complaint against

the Petitioner (just to damage the petitioners reputation in the

society) for allegedly violating Massachusetts law i.e. trespass and

more in her owe home which the petitioner was not made aware though

she was the victim in her owe home where she was been nursed as a

homecare nursing wheel chaired sick person who the local Authority

trespass in her own home without warranty. The respondent, conspired

with the local the wealthy landlord who claimed in the past that they

owned the city, court house, the police department and everything else

to a file the alleged for December 17, 2015 evictions even though the

petitioner, an innocent person in a walker/wheel chair in heart

monitoring in her home was actually the victim of the police brutality

and excessive force on that day while she was the person that was

20

severely violated and victimized. Judge Galley actions to physically

harm a helpless chronic homecare sick disabled patient in her home in

front of her relatives that witnessed the assault and made her

homeless, therefore affecting and interruption petitioner nursing home

service and the heart monitoring process due to lack of, which the

petitioner had to undergo an urgent medical procedure as a result of

the physical harm/police brutality in her own home over a $400

wrongful eviction which the landlord cashed the petitioner's December

2015 month rent check is not a judicial act rather it is a

retaliations.

Judge Gailey severely caused permanently injuries and trauma to the

petitioner who was harmed in her own home in front of her relatives in

retaliation for filing a complaint against him at the US District

court. Judge Gailey had a complete disregard for human life or for a

sick disabled patient's life which is not a judicial act but an abuse

of judicial discretion, personal revenge and a violation of the

petitioners 18t amendment rights. Furthermore, Judge Galley had the

petitioner evicted from her home while paying rent, while a stay of

execution was filed; while an appeal was filed and petitioner was

racially targeted by white police officers who broke into the

plaintiff's home, while she was return back to her kitchen from the

living room which she followed the officers orders when they suddenly

broke into her home. Without any announcement, thought the petitioner

was nowhere near the policer officers who entered her home through the

kitchen door which was the only entrance door. They still proceeded to

try to shoot the handicap person on a heart monitor even though

petitioner didn't violate any laws in her own home. The officers still

inflicted a major physical injuries on a sick person and put her in

trauma with the use of excessive force, physically abused a handicap

while holding her disabled medical walker/wheelchair and heart monitor

device in front of her relatives who also suffered trauma as they

witness the physical attack. The actions of the officers was an abuse

of discretion, was a premeditate act and of a racial discrimination

hate crime and the reckless endangerment of a sick patient in her own

home.

The petitioner was rushed to the hospital by ambulance as her life

line machine went off, on a serious heart attack risk on the day of

the wrongful Eviction when the police took her medical heart monitor

which she was wearing on her body and slammed it on the floor

including damaging the petitioners phone and other disabled devices

she was holding during that wrongful eviction day. The police

officers completely neglected the fact that the petitioner was stating

that she filed a "stay of Executions", she was on heart monitor

device, going to her kitchen and also that she already filed an appeal

which she was willing to show them a copy of the appeal filed, which

they refuse and stated "we got you now." The plaintiff was humiliated,

severely traumatized and suffered post-traumatic stress and is still

homeless. Till the present time, she has suffered a lot of harm on

the street as a result of Judge Gailey's violations of her civil and

constitutional rights. On the same date, Judge Gailey maliciously

21

informed the public, publicized the wrongful complaint as well as the

driving license office which is how the plaintiff was made aware this

complaint. The petitioner who is a good contributor to the society,

who is known as a kind hearted, volunteer of advocacy to elderly and

disables, who has never committed any crime and has no intentions to

commit either, suffered a serious traumatic stress and humiliation on

that day till present for this malicious allegations as a result of

judge Gailey's retaliations for filing a complaint against him.

The Respondent's initimidation and abuse of discretion actions

against the petitioner did not stop after the wrongful eviction but

worsen even while the Petitioner was homeless and in a very poor

health conditions affected by the homelessness. It continued when the

Respondent allowed the landlord to continue bullying and harassing the

Petitioner who is a disabled patient including publicly slander and

defaming her and to ruin her reputation rendering useless to the

society. It is also the Respondent who removed Petitioner from her own

home and yet continued to corroborate to attempt to maliciously damage

her background due to ill racial hate and frivolously abuse of power

which is considered an abuse and cruelty to a handicap person,

violation of the IWA act.

Covenant of Quiet Enjoyment or Possession.

Here, Tenant was not an at-will tenant subject to the whims or

idiosyncrasies of the Landlord or its agents. Rather, Tenant had a

lease. See Residential Landlord-Tenant Bench book, 3rd edition,

Fleischer, Judicial Institute p. 43 (2013)

It has been established that, in today's world,

seek 'shelter' today, they are seeking a whole

"[wllhen Americans

a package which includes not merely

package of goods and services

walls or ceilings, but also, adequate heat, light, ventilation

serviceable plumbing facilities, secure windows and doors, proper

sanitation and proper maintenance." Javins v. First Natl. Realty

Corp., 428 F.2d. 1071, 1074 (D.C. Cir. 1970). By entering into her

lease, Tenant was entitled to rent an apartment with adequate heat.13

There is no question that adequate heat was a material significant

feature of her lease. See DiBella V. Finumara, 63 Mass. App. Ct. 640,

646 (2005)

Tenant asserts that Landlord was obligated to take Tenant as she was,

similar to that of a personal injury party. Because of her health

issues, Tenant needed a warm apartment, not a drafty one. Here, there

is no question raised that Tenant was evicted for behavior-based fault

or for good cause. See e.g., Costa v. Fall River Housing, 71 Mass.

App. Ct. 269, (2008), FAR 451 Mas. 1103, (2008). Rather, this case

involves the covenants which run through the lease for the Landlord to

provide adequate heat in exchange of rent. See M.G.L. c. 186, §14; AlZiab v. Mourgis, 424 Mass. 847, 850 (1991).

.

.

.

-

The issue is not one of materiality, but, rather, simply, was Tenant

22

entitled to abate her rent? See Boston Housing Authority v. Hemingway,

363 Mass. 184, 194 (1973); M.G.L. c. 239, §8A. The issues raised in

this action are those concerning the covenants found to be created by

the lease. See MPS, Landlord and Tenant Law, Daher and Chopp, 3rd ed.,

Vol. 33, §10; see also, Landlord Survival Guide, GBREB 8th Ed.,

Philips Laptin, p. 70; see also M.G.L. c 239 §8A; M.G.L. c 111 §127.

Here, Landlord expressly coveted to provide a specific apartment to

Tenant upon Tenant's promise to pay rent. Landlord impliedly

covenanted that Cliffside would not exercise any power to deprive

Tenant the use of a specific apartment unless Tenant breached her

rental contract. Tenant consistently paid her monthly rent. Tenant

consistently provided written documentations about her complaints with

the care and maintenance of the apartment by Landlord. During the term

of the leases, Tenant was entitled to possess Apartment itlOS. She made

it her home. Tenant asserts that she did not breach her lease by

withholding a small sum as abatement.

Landlord did not remedy the situation merely by arguing that she

should have rented another apartment on the opposite side of the

building so as to have access to solar power for heating. Landlord had

did not remedied the heating situation for almost 3 years of

complaints by Tenant. Landlord certainly did not prove that Tenant

breached the leasing contract by withholding a small portion of the

rent on one occasion. See Boston Housing Authority v. Hemingway,

supra; M.G.L. c. 239 §18A

Under this covenant alone, the Woburn District Court erred as a matter

of law when it allowed Landlord to evict Tenant in December 2015, 6

months earlier, prior to what would had been end of a term lease.

Covenant of Habitability

Tenant properly defended herself against Landlord by arguing that she

had a right to abate the rent by $400 for Landlord's habitual

violation of the implied warranty of habitability. See M.G.L. c 239

§8A Nowhere in the Woburn District Court docket is there any

indication that the Court even recognized that, the implied warranty

of habitability, when landlord did not remedy the situation. Tenant

was entitled to self-help by abating the rent. See M.G.L. c. 239, §8A

codifying Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973).

Pursuant to M.G.L. c. 239, §8A, Tenant could have withheld the entire

month's rent.

Fraudulent Misrepresentation

Tenant also tried to defend herself by arguing that Landlord, as being

adequately habitable, fraudulently represented the apartment because

she was not provided with the inspection report prior to her moving

into the apartment in 2013. As the Woburn District Court did not even

address this issue, Tenant asserts that the Court erred as a matter of

law.

Medical Documentation

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The sole basis for the Woburn District Court's ultimate decision of

default was that the Court concludes that her Medical documentation

was "conclusory".

The Woburn District Court is not comprised of medical doctors. By

determining that Tenant's medical documentation was conclusory, the

Woburn District Court exceeded its authority. See M.G.L. c 1513, §B.

It also violated federal law governing disability. See 42 U.S.C.

§3602(h) (1) (definition of disability

"physical impairment

which substantially limits one or more major life activities of a

person." See generally, Flagg v. AliMed, Inc. 466 Mass 23, 28-33

(2013); Gauthier v. Sunhealth Specialty Servs., Inc., 555 F.Supp. 2d

227, 237 (D. Mass. 2008); See also Reasonable Accommodation Issues in

Housing, Alexander Mitchell -Munevar,GBLS, Chapter 3.

Tenant was not a "deadbeat" tenant. She was making every possible

argument to defend her home. Eight months (April to November, 2015) is

not an unusual amount of time to try a summary process action,

especially when, as here, Tenant is, and was, in and out of the

hospitals. The importance of one's home is recognized as a basic

necessity of the modern life by both the Judiciary and the

Legislature. The Woburn District Court's decision made a mockery of

summary process.

-

Jurisdiction.

While the decision of the Woburn District Court may be seen as an

interlocutory decision depriving this Court of jurisdiction, it does

not do so when, as here, that court erred as a matter of law. It also

does not lose jurisdiction when, as here, that court abuses its

discretion.

Here, the decisions of the Woburn District Court judge Gailey are

plainly wrong and abusive in violations of the petitioner

constitutional rights.

No Harm or Injustice to Landlord.

No evidence of harm or injustice to Landlord was presented to the

Woburn District Court in this action from Tenant's withholding a small

portion of the monthly rent for March 2015 and continued paying full

rent for the next nine month even on the month December 2015 when she

was wrongfully evicted from her home while the landlord cash her rent

check and tenant remained on the street in the middle of freezing cold

a heart monitoring patient during Christmas.

In the face of no evidence being presented of harm or prejudice to

landlord, and in the face of other, less devastating, possible

decisions though the petitioner didn't have a chance of due process,

the Woburn District Court or Landlord can make no showing that the

disputed decision, including eviction, were the only possible outcome

when the petitioner did not even have any dues process. Cf. Feldman v.

Jasinski, 2009 Mass. App. Div. 249 (2009). Chapter 239, §8A expressly

provides guidance for a rent withholding. Cf. Drucker v. Chin, No.

01822 (November 1974); Chandler v. Johnson, No. 09-P-2272 (2011).

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93A

There can be no question that Landlord was a business as defined by

M.G.L. c. 93A. All Tenant's arguments under the statutory housing

scheme also apply to her statutory claims of unfair, fraudulent, and

unjust practices. See M.G.L. c 93A. Because the Woburn Judicial Court

did not provide any accommodation for Tenant's health issues; these

claims of violation of M.G.L. c. 93A were not heard. Had they been

heard and Tenant succeeded, Landlord could have been found to owe

Tenant damages of three times the full monthly rent and her attorney's

fees and costs.

No Notice

M.G.L. c 239 §8A requires notice of eviction. Tenant has maintained

her argument that landlord improperly notified Tenant of eviction.

The Woburn District Court made no ruling on this argument by Tenant.

In the absence of a ruling, this court is required to accept Tenant's

supposition.

Emotional distress.

Had Tenant been allowed to amend her compliant, she might also added a

count for the infliction of emotional distress caused by losing her

home. Landlord also may have been found to be retaliating for Tenant's

seeking her legal rights. Here, there can be no argument that Tenant

was inflicted with emotional distress by being forced to lose her home

and by becoming homeless. Cf. Simon v. Solomon, 385 Mass 91, 99

(1982) ("actual and consequential damages [for reckless infliction of

emotional distress]" or three months' rent, whichever is greater, plus

costs and attorneys' fees)

Application Fee

Tenant also argued that Landlord violated the statutory procedure for

becoming a tenant. See M.G.L. c. 186, §15B; see also, Mellor v.

Berman, 390 Mass. 275, 278 (1983); Mellor v. Berman, 13 Mass.App.Ct.,

983, 983, (1982) Here, in 2013, Cliffside charged Tenant an

additional $100.00 to process her application for the Cliffside

Apartment No. 108. M.G.L. c. 186, 15B does not allow Cliffside to

charge for application processing. See Dolbern v. Friedman, No. 10034

(208) ; Broad St. Associates v. Leine, No. 12-P-2041 (2011) Again,

Tenant is entitled to recover damages.

.

.

Security

Landlord was entitled to get first month's rent, last month's rent,

and a security deposit. See M.G.L. c 186 §15B. Here, Tenant provided a

security deposit in the sum of $1,725.00. Landlord didn't record this

rent, but rather, recorded the increased rent. Landlord also did not

provide the banking account information as it was required to provide.

See M.G.L. c

186 §15B (1) (a)&(d-e)

Discrimination

Disability

25

Tenant is disabled, as defined. She has physical limitations requiring

numerous hospitalizations.

Tenant argues that the hidden reason for her eviction was racial and

disability discrimination, not the abatement of $400.00. It has been

long settled that a landlord cannot discriminate for either reason.

See ADA; Civil Rights Act. Tenant properly notified landlord about the

Cliff side Managers' treatment of her.

No Harm To Landlord

Where, as here, landlord offered no evidence about the possible harm

or prejudice to it, no evidence about the need for immediate

termination of her lease, and no evidence demonstrating the error of

Tenant's belief racial and handicap discrimination, combined with all

of the errors of law by the Woburn District Court, then, Tenant is

reasonable in her supposition of racial and handicapped

discrimination. See Harris v. Harvey, 605 F.2d 330, 335 n.7 (7th Cir.

1979); M.G.L. c 239 §9-10; see also Title II of the ADA; Civil Rights

Act 42 U.S.C.A. §1988.

Constitutional Rights

All of the errors instead herein demonstrate that Tenant was evicted

illegally in error of the law. Said accumulative errors also violated

Tenant's State & Federal Constitutional rights of due process and

equal protection.

The Fourteenth Amendment explicitly prohibits states from violating an

individual's rights of due process and equal protection.

Is a suit against judge Gailey for violating constitutional and

civil rights a within the meaning of the Petition Clause of the

First Amendment?

Justice Brennan faced this question, thirteen years ago in Briscoe

v Lahue, 460 US 325, at 346 (1983) in his dissent. It is short enough

to be quoted in the entirety: "Justice Marshall's Dissenting opinion,

post, presents an eloquent argument that Congress, in enacting

Section 1983, did not intend to create any absolute immunity from

civil liability for 'government officials involved in the judicial

process ...' The Judiciary will become "democratized." The question

is whether it will embrace, assist, and guide that process. In this

case, what the court should do, whether by way of Points Two or Three

above, is to deny any judicial immunity at this stage and to allow all

questions of defense to go to the jury. The policy of judicial

immunity is wrong and that wrong principle was created by the

Judiciary. It is a maxim of jurisprudence: "No one may benefit

from their own wrong." "Democratizing the Judiciary" means in this

case: "Let the Jury decide the constitutional credibility of the

defense." For the Constitution is theirs no less than yours.

Judge Gailey is not immune from Suit

Given the abrogation of state immunity by the ADA, claims can be

26

brought against a state judge in his/her individual or official

capacity under the ADA but for the doctrine of judicial immunity. It

has been established that this doctrine generally affords judges

immunity from damage suits. See Stump v. Sparkman, 435 U.S. 349, 356

(1978). However, the supreme Court has held that judges can be held

liable for damage S2 in suits where actions which are administrative in

nature are challenged. See Forrester v. White, 484 U.S. 219, 224-225

The Court in Forrester refused to attach judicial immunity to

(1988)

a judge's decision to fire a court employee, because the act was not

judicial in nature. The Court held that truly judicial acts must be

distinguished from the administrative, legislative or executive

functions that judges may occasionally be assigned to perform.

According to the Court, it is the nature of the function performed

adjudication

rather than the identity of the actor who performed it

that determines whether absolute immunity attaches to

a judge

the act. Any time an action taken by a judge is not an adjudication

between parties, it is less likely that the act [will be found to be]

a judicial one. Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994)

In Morrison v. Lipscomb, 877 F.2d 463 (6th Cir. 1989), a Chief

Judge's moratorium on writs of restitution during two holiday weeks

was challenged by a landlord unable to redeem his property from a

tenant for those two weeks. The Court of Appeals for the Sixth

Circuit held that the moratorium, though performed by a judge, was not

a judicial act entitled to absolute immunity. The court noted that the

act was not judicial in nature, because the legislature could have

easily issued the moratorium as well.

.

--

--

--

--

In Slyvester Harris v.Richard G. Harvey, Jr., 605 F.2d 330 (7th

Cir. 1979) This action was brought under the Civil Rights Act (42

U.S.C. § 1983) by a former Racine, Wisconsin, police lieutenant

against a Racine County, Wisconsin, judge and against Gerald Clickner,

Racine County District Attorney. Plaintiff claimed that defendants'

actions, of judicial racial bias and discrimination against him,

deprived him of Fourteenth Amendment due process and equal protection

of the laws.

The claim for the jury in the trial of the matter was whether the

defendant had through non-judicial acts motivated by racial animosity

inflicted injury including loss of employment opportunity, injury to

reputation and emotional distress on the plaintiff. The jury trial

commenced on February 27, 1978. During the trial, presiding Judge

Gordon ruled as a matter of law that defendant acted under color of

law and in the absence of all jurisdiction (App. 18). On March 8

the jury returned a special verdict that Judge Harvey's actions

concerning the plaintiff were racially motivated, that plaintiff was

injured by such racially motivated acts with respect to his reputation

in the community, reputation and working ability within the police

department, and opportunities for advancement within that department.

27

The jury also found that Judge Harvey's racially motivated acts had

caused the plaintiff humiliation, embarrassment and mental distress

and interfered with his continued employment. The jury set

compensatory damages at $60,000. It also found that Judge Harvey's

actions were done maliciously, wantonly or oppressively and therefore

assessed $200,000 punitive damages against him. In a lengthy and

persuasive opinion the district judge refused to disturb the verdict

(App. 26-38) and later awarded plaintiff attorneys' fees in the amount

of $7,500 (App. 39) in lieu of the $39,120 claimed

(App. 38). We affirm.

Neither Judicial Nor Prosecutorial Immunity Protects the Acts for

Which Defendant Was Held Liable. In support of reversal, defendant's

principal argument is that he is immune from any liability to

plaintiff for damages arising from his acts on the ground that he

enjoyed judicial and prosecutorial immunity. As to the former, the

trial judge properly applied the rule of Stump v. Sparkman, 435 U.S.

349, 98 S.Ct. 1099, 55 L.Ed.2d 331, in holding that the acts

perpetrated outside of Judge Harvey's courtroom and not then a part of

his judicial functions were undertaken in the "absence of all

jurisdiction."

We can agree with the district court that Judge Harvey's attacks on

plaintiff were not part of his duties; Barr would not afford him a

defense even if it did apply to judges. It is undisputed that

defendant did not offer a qualified immunity defense below, but in any

event such a defense would not withstand the jury's finding.

Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 15 L.Ed.2d 597.

This Claim Is Cognizable under the Equal Protection Clause of

the Fourteenth Amendment.

In the 'kids for cash' scandal case, Philadelphia, Jan. 10, 2014.

District Court for the Middle District of Pennsylvania granted

plaintiffs' motion for partial summary judgment against former Luzerne

County Juvenile Court Judge Mark Ciavarella, the judge at the center

of the now infamous 'kids for cash' scandal. Specifically, U.S.

District Court Judge A. Richard Caputo found that Ciavarella violated

the constitutional rights of the children who appeared before him to

an impartial tribunal, as guaranteed by the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution. Ciavarella is

currently serving a 28-year federal prison sentence following his

criminal conviction in February 2011 on charges arising out of the

scandal. While American courts have a long history of protecting

judges from suit by litigants who have appeared before them, Judge A.

Richard Caputo ruled that Ciavarella is not immune from suit for his

non-judicial conduct associated with the violation of the children's

rights.

SUMMARY

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The petitioner's case presents extraordinarily important issues

warranting a carefully prepared Petition. The issues

involve fundamental questions of and facial challenges to the

entitlement to absolute immunity for respondent who violated the due

process and equal protection of a severely ill disabled patient/

petitioners rights to be deemed medically fit to stand for a court

case trial, with respect to accessing judicial services and equality.

Accommodating a person with a disability through reasonable

modifications/medically deem fit violates the due process clause as

well. Persons with disabilities are looking at a fundamental right or

at the very least something higher than rational basis. Therefore,

there simply cannot be a compelling reason or even a good reason to

deny a person with a severe disability trying to access fair judicial

services the accommodations he or she is entitled to under the ADA.

Accordingly, such a denial is a violation of the 14th amendment to the

U.S. Constitution. In recognition of the seriousness of these issues,

the Court of Appeals stayed its mandate and four judges on the Court

of Appeals would have granted to reverse.

This court should not dismiss Judge Gailey from the case before

petitioner has an opportunity to prove that the Judge acted

administratively, not judicially, when refusing petitioner's the right

to be medically deem fit for trial. Judge Gailey does respond in his

official capacity for any injunctive relief the petitioner is

requesting and also responds in his individual capacity to the extent

the acts in controversy are administrative in nature and not protected

by the absolute immunity doctrine. In any event the federal court

gave no consideration to this issue what so ever, but found Respondent

(Gailey) The Rooker-Feldman Doctrine immunity rights an absolute bar

to Petitioners claims injunctive relief and constitutional rights

violations. This court should undo go the damage caused by the federal

court to appropriately defining/ review the federal court jurisdiction

or application of The Rooker-Feldman Doctrine for injunctive relief

when a state judge violates a litigant 15t and 14th amendment to the

U.S. title II of the Americans with Disabilities Act of 1990 ("ADA"),

42 U.S.C. § 12131 et seq and Civil Rights Act (42 U.S.C. § 1983)

Based on the language of the ADA, respondent' argument is without

merit.

§ 1983 allows for injunctive relief against a judicial officer

where declaratory relief was violated or where declaratory relief was

not available. However, the Rooker-Feldman Doctrine does not bar suits

for damages under title II of the ADA Considering the motions for

accommodations and the refusal of the court to certify it for

interlocutory appeal, an argument can be made that declaratory relief

was not available. Given the abrogation of state immunity by the ADA,

claims can be brought against a state judge in his/her individual or

official capacity under the ADA but for the doctrine of judicial

immunity. It has been established that this doctrine generally affords

judges immunity from damage suits. However, the Supreme Court has

held that judges can be held liable for damages in suits where actions

which are administrative in nature are challenged.

29

CONCLUSION

For the forgoing reasons, Petitioner Kelechi Linardon

respectfully requests that the petition for a Writ Of Certiorari

should be granted.

Respectfully Submitted,

Date: 11/29/17

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