Petition for Writ of Certiorari — Eric Drake, aka E. V. Drake, Petitioner v. United States District Court for the Eastern District of Texas
Supreme Court briefApr 8, 2019
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E. DRAKE,
Petitioner
V.
U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS,
Respondents
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
Eric Drake
Pro-Se
10455 N. Central Expressway
Suite 109
Dallas, Texas 75231
912-281-7100
April 19, 2019
2019
1
QUESTIONS PRESENTED
Petitioner is a citizen of the United States of America.
Pursuant to the U.S. Constitution and the Bill of Rights, he has
rights to bring lawsuits, defend lawsuits, give evidence, have
access to the courts, and the same protections as white citizens.
This case represents a disturbing trend of both state and
federal courts in denying pro se citizens their rights to bring
lawsuits in forma pauperis. Several states have vexatious
litigant laws to allegedly prevent pro se litigants from bringing
lawsuits that have merit without first obtaining permission from
an administrative law judge to review the case. Petitioner has
been determined as a vexatious litigant in Travis County,
Texas. As a result, the Petitioner has lost over a million dollars
in compensation regarding several claims. After being wrongfully declared vexatious by Travis County state court,
attorney's who has signed written agreements to represent
Drake in civil litigation have withdrawn from representing him.
Other attorneys have refused to represent the Petitioner upon
discovering he was wrongfully declared vexatious.
In 2014, Petitioner had an accident were he was rearended. Liability was clearly the responsibility of other party.
The accident resulted Drake having to undergo surgery on his
lumbar spine. However, the judge who was appointed as the ad-
11
ministrative law judge in Tarrant County, Texas denied Drake
the right to file his lawsuit. This action violated the Petitioner's
right to have access to the courts; it was a violation of 42 Usc
§ 1981, it violated Petitioners 14th Amendment rights of due
process, as well as Drake's first amendment right of speech (to
petition), and Petitioner's constitutional rights in general.
Petitioner hired an attorney in another County in Texas to
represent him, and that a judge granted permission to file
Drake's lawsuit, but every attorney that the Petitioner hired
withdrew after discovering he was declared vexatious. Unbelievably the state courts allowed those attorneys to withdraw,
knowing that Petitioner was recovering from lumbar surgery.
Petitioner has been representing himself for over 30years. Defense attorneys of some of the largest law firm in the
nation have a lost their cases against the Petitioner. Being
embarrassed, defense attorneys have conspired with state and
federal judges to declare the Petitioner as a vexatious litigant,
thus preventing him from having access to the courts. State
judges have misused this statute to wrongfully declare Drake as
a vexatious litigant in light of evidence clearly pointing to the
fact that his case had merit.
In the Travis County litigation, an assistant attorney
general for the state of Texas, Scot Graydon, declared the
Petitioner as vexatious, with the assistance of Travis County
111
courts employees, including judges. The Travis County clerks
office destroyed or misappropriated Drake's pleadings, a court
employee who wasn't qualified to do so, appointed the judge
who declared the Petitioner vexatious. The Supreme Court of
Texas also weighed in by refusing to accept the Petitioner's
pleadings when he attempted to overturn the wrongfully
determined as vexatious. In addition, the Third Court of
Appeals ignored evidence and assisted the attorney general's
office in confirming Drake as vexatious. Finally, the assistant
attorney general, Graydon, perjured himself under oath to allow
the conviction to take place. There are no avenues for a person
to seek help when the states Supreme Court refuses to accept
his or her petitions. This Court will not consider a state court
case without first having a denial by a state's Supreme Court.
Since this action, the Petitioner has not been able to obtain any
relief. And unless this Court acts, there will be continual
irreparable harm caused to the Petitioner.
Federal courts have also harmed Drake. if the Petitioner
files any litigation in the entire state of Texas in a federal court,
or even in another state, the litigation is oftentimes transferred
to the Northern District of Texas where federal judges in that
court will find any reason to dismiss Drake's cases—in fact
oftentimes the reasons given by that court are completely frivo-
iv
bus. See Drake v. Safeway. App. W, X, Y, 130a-151a.
(Northern District of California magistrate was determined to
transfer Drake's case to the Northern District of Texas, even
though jurisdiction was proper in California). Both federal and
state courts have conspired to dismiss the Petitioner's cases.
Habitually, federal courts nationwide will make reference
to a sanction order from the Eastern District of Texas, but will
not afford a hearing of any kind to the Petitioner. Of course, a
hearing would allow Drake to demonstrate that the prefiling
injunction is frivolous. This occurred most recently in Drake v.
Wamczyk, cause number: 3:19-cv-427. App. J, 79a-81a. The
idea appears to prevent Drake from filing any lawsuits and to
frustrate him to a point of his possibly taking some action,
which could result in his arrest. The hatred for the Petitioner is
so great that even federal judges would like to see him in prison
rather than being free to litigate in the civil courts.
Unfortunately, the case at bar is unimaginable for an
alleged free country that promotes justice, freedom, and
impartiality. The Petitioner has to obtain permission to file an in
forma pauperis lawsuit in the Eastern District of Texas because
of a recommendation by Magistrate Caroline Craven and an
order signed by Judge Folsom. The Eastern District of Texas
will not grant Drake a hearing to clear this frivolous order. App.
0, 100a-106a. Even so, at the center of this case before this
V.
Honorable Court, is the denial of Petitioner's in forma pauperis
and the refusal to accept Drake's original petition even after he
presented the filing fees for the petition to the federal court.
After the Eastern District of Texas denied the Petitioner's
motion and affidavit in forma pauperis. Drake borrowed the
money needed for the filing fees to file his original petition. See
App. Zi, 173a-174a. Nevertheless, the Eastern District of
Texas federal court still refused to accept the Petitioner's
pleadings. The refusal was based on a recommendation made
by Magistrate Don Bush that Drake must obtain permission to
file any new litigation, pursuant to Drake v Penske case. But
why would Judge Bush enter such a recommendation into the
courts record when the Petitioner settled his case with Penske
for more money than even experienced product liability lawyers
said it was worth. There are no orders by Magistrate Bush or
any Article Ill judge that would prevent Drake from filing new
litigation or petitions if he has the filing fees. Even when a pro
se litigant is successful in their litigation, they can nevertheless
be plagued by the vexatious litigant statute or unjustified
prefiling injunctions by federal court.
The Petitioner filed an appeal to the Fifth Circuit court.
However, the Fifth Circuit court of Appeals wrongfully
dismissed Drake's appeal even after having evidence (medical
reports) that prove he was severely injured in an auto accident.
As this Court is fully aware, Petitioner had a collision
with an 18-wheeler, and suffered cervical and lumbar injuries.
Petitioner also suffered traumatic brain injury. The Petitioner
requested a stay of the proceeding in the Fifth Circuit, because
vi
of his injuries and annexed medical notes and records. As a
response, the Fifth Circuit denied the stay, denied requested
seal of Drake's medical records, denied the request for an
extension to file brief, and the clerk dismissed the Petitioner's
case, claiming a failure to prosecute. However, the Petitioner
did file his motion and affidavit in forma pauper/s with the
Fifth Circuit.
Many state and federal courts supports the use of the
vexatious litigant statute. But for a man that defense attorneys
find difficult to defeat, these lawyers are able to tie Drake's
hands by wrongfully determining him as a vexatious litigant.
In many Counties in Texas, criminal judges are appointed
as administrative judges to evaluate the merits of civil cases for
individuals who have been determined vexatious. Yet, Drake is
more qualified than the average criminal judge to evaluate a
civil personal injury matter. Petitioner has over twenty-years of
experience in civil law and personal injury cases.
Many criminal Judges simply do not understand civil law,
and many times will wrongfully deny pro se litigants cases that
have been determined as vexatious, even though the cases have
merit. It is difficult enough for a pro se litigant to abide by the
rules of courts like attorneys, but the vexatious litigant statute
places an even greater responsibility on non-lawyers, that pro se
must have a better winning record in the courts than anv
licensed lawyer who has ever lived.
vii
Moreover, there are small counties in this nation, that do
not have an administrative law judge, and even the clerk's
offices do not know what judge should hear and or rule on the
pro se petitions who have been deemed as vexatious. These
types of violation of U.S. citizen's rights cannot be allowed to
continue, and this problem must be solved. There are no other
courts in this nation that can resolve this matter but this Court.
The conduct described herein cuts through the fabric of
this nations flag of alleged freedom and rights for which it
stands. It blots out the rights enshrined in the U.S. Constitution
and Bill of Rights for U.S. citizens like the Petitioner who have
been wrongfully deemed vexatious. Furthermore, it brings pro
se litigants like Drake back to an era where he could be lynched
for even complaining about such conduct. To deny a citizen the
right to petition is to lynch his ability to obtain relief. For these
judicial actors strangle the rights of ordinary citizens to
accomplish their misguided deeds. If citizens are unable to
bring his or her civil non-frivolous disputes and cases to a court
of law, then how or in what manner shall these cases be settled?
What is even more unsettling is that these agents of state
and federal governments and judicial actors have committed
actual crimes against the Petitioner with impunity. Thus, the
Petitioner is seeking review by this Court of not only what
occurred in the Fifth Circuit and district court, but also to
abolish the vexatious liti2ant statute in the United States.
If this Court fails to act, the state and federal courts
complained of herein, and their judges will continue to forcibly
rape citizens like Drake—in plain sight, of their constitutional
and civil rights. This Court therefore must act to hear this case.
viii
The questions presented are:
Is it a violation of the First Amendment right of speech (right
to petition), 42 USC §1981 (right to sue, give evidence, to be
parties to suits), the 14th Amendment right (due process), and
access to the courts, even if the person have been determined
vexatious by a state court or when there is a federal prefiling
injunction against the party, in particularly as in this case, if: a)
U.S. citizen's are determined as vexatious by fraud and
conspiracy, b) If U.S. citizen's civil cases are not being
evaluated properly and thus his or her access to courts are
wrongfully denied, restricting their ability to sue, c) If appellate
courts have refused to accept U.S. citizens petitions because he
or she has been wrongfully determined as a vexatious litigant.
[Drake was prohibited from filing his petition in the
Eastern District of Texas, Marshall, Texas division by a
mere recommendation made by a magistrate judge, and
not because of any orders signed by an Article III judge.
Thus, the question is whether these actions against Drake
violated his core rights as set forth herein].
Whether the vexatious litigant statutes should be outlawed as
unconstitutional, offensive to due process, and fair play, and or
a tool that is used by defense attorneys and judges to abuse nonlawyers, violate their rights, and win cases for the defense.
Whether having criminal judges who are incompetent, untrained, and or unknowledgeable about civil case, to review
civil cases to determine if a pro se litigant if those cases have
merit, is defeating the purpose of the vexatious statute.
Is it a violation of the First Amendment right to petition, as
well as 42 Usc §1981 right to sue, to give evidence, and be
parties to suits, due process of the 14th Amendment right of
U.S. citizens, and to have access to the courts when courts
wrongfully deny pro se litigants applications in forma pauperis
even when the party qualifies for such relief to have access to
the courts. Is it a violation of these aforementioned statutes
when a federal court refuses to accept U.S. citizen petitions
when he or she has the filing fees to pay to file their petition.
ix
PARTIES TO THE PROCEEDING
Petitioner, Eric Drake, an individual person, a citizen of
the United States.
Respondent, Harrison county is the County in which the
Petitioner was injured while the state was repairing and or
building a bridge. The City of Hallsville is the City in which the
Petitioner was injured while the state was repairing and or
building a bridge. East Texas Bridge Inc., is the contractor that
was building the bridge for the state of Texas. Caroline M.
Craven is the magistrate who filed the frivolous report and recommendation to enjoin the Petitioner from filing any petitions
in the Eastern District of Texas in forma pauperis, which acts
as an prefiling injunction against the Petitioner.
x
Thad Heartfield, Ron Clark, Marcia Crone, Amos L.
Mazzant III, Robert W. Schroeder III, John Love, Zack
Hawthorn, Roy Payne, K. Nicole Mitchell, Richard Schell,
Christine Nowak, and Kimberly Johnson are judges in the
Eastern District of Texas who have abused their positions, and
their discretion. The Petitioner was seeking an prefiling
injunction against their presiding over his cases in the future.
Karen Sessions is the clerk of court who also abused her
discretion by filing Petitioners petition in the wrong venue and
the Court refused to transfer to the proper venue.
RULE 29.6 CORPORATE DISCLOSURE STATEMENT
Petitioner Eric Drake is an individual person, who is
acting in this writ pro Se.
TABLE OF CONTENTS
Questions Presented
.
i
Parties To The Proceeding.........................................................................ix
Corporate Disclosure Statement .................................................................x
Tableof Content ........................................................................................xi
Table of Authorities ................................................................................xvii
Index of Appendices .............................................................xii
DecisionsBelow ..........................................................................................1
Statement of Jurisdiction ...........................................................................1
Pertinent Constitutional Provisions and Statutes .........................................1
Statementof the Case .................................................................................2
Factual Background ................................................................................2
Statutory Background ............................................................................7
Ill. Proceedings Below ................................................................................9
REASONS FOR GRANTING THE WRIT ...............................................10
I. FIFTH CIRCUIT ERRED AND ABUSED ITS DISCRETION BY
DISMISSING THE PETITIONERS APPEAL ......................................14
X1
A. Fifth Circuit was aware that Petitioner was severely injured in an
accident with a semi-truck, but failed to stay the Petitioner appeal
Fifth Circuit also apparently misappropriated the Petitioners motion
forIFP ..............................................................................................14
II. THE DISTRICT COURT VIOLATED THE PETITIONER'S RIGHTS
AND THE FIFTH CIRCUIT ERRED BY WRONGFULLY DISMISSING THE PETITIONER'S APPEAL ....................................................18
A. Violation of Petitioner's First Amendment Rig of Free Speech
1. Federal Injunctions and States Vexatious Litigant Statute ...........19
2. Judges Craven and Folsom Prefiling Injunction And its Effects On
Federal Courts Nationwide .............................................21
Craven's Report and Recommendations .........................22
Repercussions of Craven's Report I Folsom Injunction .......25
3. Free Speech (the right to petition) Violations .........................29
4. Violation of 42 U.S.C. §1981 and Access to the Courts .............33
5. The District Court Improperly Denied the Petitioners IFP ......... 35
CONCLUSION..........................................................................................39
INDEX OF APPENDICES
Appendix A
Fifth Circuit Court of Appeals, Dismissal of Petitioner's
Appeal (18-40949) Drake v Harrison et al.
November 23, 2018 ....................................la
xii
cA
Appendix B
Fifth Circuit Court of Appeals Denial of Petitioner's,
Request for limited discovery, compel depositions,
alternate jurisdiction, extension to file brief, exhibits
under seal (18-40949) Drake v Harrison el at.
November 21, 2018 ...............................2a-3a
Appendix C
Petitioner's Request of Fifth Circuit to Extend Time
to file brief (18-40949) Drake v Harrison et at.
December 6, 2018 ..............................4a-16a
Appendix D
Petitioner's Request Fifth Circuit to Reconsider and
Response to Court Denial of extension to file brief,
request to seal medial records, limited discovery,
jurisdiction argument, and renewed request for extension to file brief (18-40949) Drake v Harrison et at.
December 6, 2018 .................................17a-36a
Appendix E
Petitioner's Motion to Proceed in Forma Pauperis
annexed Clerk's Record to show that Drake's IFP
was filed but that document have been substituted with
another document (18-40949) Drake v Harrison et at.
Filed November 11, 2018 ........................37a-40a
Appendix F
Petitioner's Notice Appeal and Motion Proceed in
forma Pauperis
(No. 2: 18-cv-00400) Harrison et at.
Filed on October 3, 2018 ........................41a-53a
Appendix G
District Court's Denial of Drake's Motion Proceed in
Forma Pauperis (No. 2: 18-cv-00400) Harrison et at.
Filed on October 4, 2018 ........................ 54a-56a
xiii
Appendix H
Order of District Court's Denial of Petitioner's
to file his petition (Cause No. 2: 18-cv-00400)
Filed on September 19, 2018 .................... 57a-58a
Appendix I
Petitioner's Amended Notice of Appeal
(Cause No. 2:18-cv-00400)
Filed on October 3, 2018 ........................ 59a-78a
Appendix J
Order from Northern District of Texas, Drake v. Wamczyk
et at (Cause No. 3: 19-cv-427)
Filed on March 6, 2019 ............................79a-81a
Appendix K
Order from Western District of Texas, Drake v. State Farm
Insurance et at (Cause No. 5: 18-cv-854)
Filed on August 22, 2018 ..........................82a-84a
Appendix L
Order from Eastern District of Texas, Drake v. Travelers
Indemnity et at (Cause No. 2:11 -cv-3 18), Drake v. Bank
ofAmerica (No. 2:1 1-cv-5 15), and Drake v. Travelers
Casualty Ins. Co., et at (No. 2:11-cv-516)
This is the Report and Recommendation by Magistrate
Caroline Craven of a frivolous injunction against Drake's
filing lawsuits with IFPs.
Filed on March 5, 2012 ............................85a-95a
Appendix M
Order of Recusal U.S. District Judge, Rodney Gilstrap,
Drake v. Travelers Indemnify et at (No. 2:11-cv-318)
Filed on January 10, 2012 .........................96a-97a
Appendix N
Order of Referral from Judge Folsom to Caroline M.
Craven. Drake v. Travelers Indemnity et at (No. 2:11cv-318)
Filed on January 17, 2012 ...........................98a-99a
lxv
Appendix 0
Memorandum Order by U.S. District Judge Folsom, Drake
v. Travelers Indemnity et al (No. 2:11-cv-318), Drake v.
Bank ofAmerica (No. 2: 1 1-cv-515), Drake v. Travelers
Casualty et al (No. 2:11-cv-516)
Filed on March 16, 2012 ...........................lOOa-106a
Appendix P
Transfer of Judge Ward and Everingham cases
Filed on October 3, 2011 ..........................107a-108a
Appendix Q
Order from Northern District of Texas, Drake v.
Nordstrom et al (Cause No. 3: 18-cv-00471) Dismissal
for the Petitioner to file IFP
Filed on March 19, 2018 .......................... 109a—li0a
Appendix R
Excerpts Recommendation and Findings of Magistrate
David Horan, Northern District of Texas, recommending denial of Petitioner's IFP. (Note the magistrate did
not make a determination that the lawsuit was frivolous)
(Cause No. 3:18-cv-471)
Filed on March 1, 2018 ........................... llla-115a
Appendix S
Excerpts Settlement Agreement, Drake v. Bank of
America et al (No. 4:15-cv-0 1248) Southern District Texas
Filed on September 2015 ........................ 116a-119a
Appendix T
Excerpts Settlement Agreement, Drake v. Alice
Andrews el al (No. 06-04497)
Agreed on 2011 ....................................120a-124a
Appendix U
Order from Southern District of Texas, Drake v.
American Century Casualty Co., et al (No. H-16-467)
Agreed on 2011 ....................................125a-127a
xv
Appendix V
Order from Southern District of Texas, Drake v.
Nathan Franson (No. 07-mc-201)
Agreed on 2011 ....................................128a-129a
Appendix W
1st and 2nd Orders to Show Cause filed by the Northern
District of California, Drake v. Safeway Inc., e. al
(No. 19-cv-00048)
Filed on January 8, and February 7, 2019 ......130a-134a
Appendix X
Excerpts from Mandamus filed in the Ninth Circuit Court
of Appeals, Drake v. Safeway Inc., et al (Petition for Writ
of Mandamus (No. 19-70370)
Filed on February 13, 2019 .......................135a-142a
Appendix V
Order from Magistrate in the Northern District of
California, Drake v. Safeway Inc., et a!
(No. 19-70370)
[note: reference to the Eastern District of Texas injunction in this document]
Filed on March 11, 2019 ..........................143a-151a
Appendix Z
Memorandum Report and Recommendation by Magistrate
Judge Bush, Drake v. Penske et al (Dist. No. 4: 12-cv-264).
Report from Pacer, Eastern District of Texas, Drake v.
Penske Truck Leasing Co. (Lexis No. 2013 US Dist. Lexis
130851).
Filed on September 2012 ..........................152a-172a
Appendix Zi
Money Order to pay for Petitioner's filing fees dated
September 24, 2018. U.S. Money Order No. 25086224687
(Cause No. 2: 18-cv-00400) Drake v Harrison, et al
Filed on October 3, 2018 ..........................173a-174a
xvi
INDEX OF AUTHORITIES
Cases
Page
Adkins v. E. I. DuPont de Nemours & Co.,
335 U.S. 331 ........................................................36
BE & K Constr. Co.,
536 U.S. at 525 ...................................................... 32
Bryant v. New York State Educ. Dep't.,
692 F.3d202, 218 (2d Cir. 2012) .................................5
Bounds v. Smith,
430 U.S. 817 (1978) .........................................................9
Bracy v. Gramley,
520 U. S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) .......36
Carey v. Piphus,
435 U.S. 247, 259 (1978) ...........................................4
xvii
Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949) .........18
Cruz v. Beto,
405 U.S. 319, 321 (1972) .......................................... 33
Drake v Wamczyk et al,
.................................................5
Drake v Penske Truck Leasing Co.,
2013 U.S. Dist. LEXIS 130851.................................. 19
Fuentes v. Shevin,
407 U.S. 67,81(1972) ..............................................5
Estelle v. Williams,
425 U.S. 501, 503 (1976) ..........................................7
Escobedo v. Applebees.
787 F.3d 1226 ......................................................39
xvii
Ex parte Hull,
312 U.S. 546 (1941)
.9
English-Sneaking Union v. Johnson,
353F.3d1013............................................................ 16
Fla. Bar v. Went For It, Inc.,
515 U.S. 618, 636 (1995) .......................................... 32
Flowers v. Turbine Support Division,
507 F.2d 1242, 1244 (5th Cir. 1975) ............................. 39
Ginelli v. Los Angeles Fire Dep't.,
1994 U.S. App. LEXIS 34697 ....................................39
Harbury,
536 U.S. at 415 & n.12 .............................................32
Haynes v. Scott,
116 F.3d 137, 139-40 (5th Cir. 1997).............................39
xviii
Hicks v. Collins,
1995 U.S. App. LEXIS 42374 .....................................39
Hudson v. Palmer.
468 U.S. 517, 523 (1984) ..........................................32
In re Winship.
397 U.S. 358, 364 (1970) ............................................7
Heffron v. International Soc. for Krishna Consciousness, Inc.,
452 U. S. 640, 649 (198 1) ..........................................27
Jews for Jesus,
482 U. S., at 576 ........................................................... 27
Kia P. v. McIntyre,
235 F.3d 749, 759 (2d Cir. 2000) .................................6
Kentucky v. Whorton,
441 U.S. 786 (1979) ................................................7
xix
(A
Lewis v. Casey,
518 U.S. 343, 406 (1996) ..................................................32
Lane v. Brown,
372U.S.477 .... ... ... ... ... ...................................................... 36
Marshall v. Jerrico, Inc.,
446 U.S. 238, 242 (1980) ...........................................5
Milisan v. Wilson,
1997 U.S. App. Lexis42081 ....................................... 16
Montanye v. Haymes.
427 U.S. 236,244 (1976) .......................................... 33
Neitzke v. Williams,
490 U.S. 319, 324 (1989) ...........................................2
Nelson v. Adams.
529 U.S. 460 (2000) ..................................................5
Octane Fitness, LLC v. ICON Health & Fitness, Inc134 S. Ct. 1749, 1757 (2014) ......................................32
Ortwem v. Schwab.
134 S. Ct. 1749, 1757 (2014)
.
33
Prof l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49, 56-57 (1993) .........................................32
Pell v. Procunier,
417 U.S. 817, 828 (1974) .................................................. 33
Reed Amar, Of Sovereignty and Federalism,
96 YALE L.J. 1425, 1485-86 (1987) ....................................31
Rippo v. Baker,
137 S. Ct. 905 ............................................................... 36
Rodriguez v. United States,
395 U.S. 327 .................................................................36
Sandstrom v. Montana,
442 U.S. 510, 520-24 (1979) ..............................................7
xxi
Sure-Tan, Inc. v. NLRB,
467 U.S. 883, 896-97 (1984)
.
32
Sullivan v. Louisiana,
508 U.S. 275 (1993) ........................................................7
Taylor v. Kentucky.
436 U.S. 478, 483-86 (1978) .............................................7
Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) ............6
Tenenbaum v. Williams,
193 F.3d 581, 593 (2d Cir. 1999) ..........................................6
Trinity Indus.. Inc. v. Myers & Assocs.. Ltd.,
516 U.S. 807, 133 L. Ed. 2d 17, 116 S. Ct. 52 (1995) ................. 22
Ulster County Court v. Allen,
442 U.S. 140, 156 (1979)...................................................7
xxii
Ward v. Rock Against Racism,
491 U. S. 781, 794 (1989)..................................................20'
Watson v. Ault,
525 F.2d 886, 891 (5th Cir. 1976).........................................39
White v. Ragen,
324 U.S. 760 (1945)......................................................... 9
Williams v. Kaiser,
323 U.S. 471 ................................................................ 36
Williams v. Larkin,
421 U. S. 35,47,95 S. Ct. 1456,43L.Ed. 2d712 (1975) ...........37
Williams v. Pennsylvania,
579 U. S.136 S. Ct. 1899, 195L. Ed. 2d 132, 141 (2016) ............37
Woodford v. Ngo.
548 U.S. 81, 122-23 (2006) ..............................................32
xxiii
Younger v. Gilmore,
404 U.S. 15 (197 1) .......................................................9
CONSTITUTIONAL PROVISIONS
U.S. Const. 14th Amend ...........................XIV, 1,4, 11,25
U.S. First Amend .................................... ........1,2,8, 12, 15,25,29
STATUTES
42USC § 1981 ................................ ....1,4, 12, 19,27
2811S.C.1915(d) ...............................................................38
28U.S.C.1915(d) .........................................................Passim
28 U.S.C. § 1254(1) .................................................................1
Texas Tort Claims Act (Act) ..................................................XXV
xxiv
DECISIONS BELOW
There is no panel opinion from the Circuit Court of appeals, but the
dismissal is and reproduced at App. la. The district court's opinion is not
reported but is available and reproduced at App. 54a-58a.
STATEMENT OF JURISDICTION
The Fifth Circuit clerk dismissed the Petitioner's appeal on November
23, 2018. App. la. Petitioner filed a motion to reconsider the dismissal of his
case, but the Fifth Circuit refused to file the motion and would not act on it
because it was filed out of time. The Petitioner filed a motion of extension to
file his brief. App. 4a-16a. Fifth Circuit denied all relief Petitioner sought.
App. 2a-3a. District Court denied Petitioner's motion to proceed in forma
pauperis. App. 54a-56a. District Court denied the Petitioner's right to file
his petition, pursuant to the First Amendment right to petition, and 42
USC1981, and the 14th Amendment rights of due process, and access to
the courts. App. 57a-58a. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
PERTINENT CONSTITUTIONAL
PROVISIONS AND STATUTES
The Fourteenth Amendment to the United States Constitution
provides in pertinent part:
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
1
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.
The First Amendment to the United States Constitution provides in
pertinent part:
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.
42 U.S.C. §1981 provides in pertinent part:
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons and property as is
enjoyed by white citizens...
STATEMENT OF THE CASE
I.
Factual Background
The federal in forma pauperis statute seeks "to ensure that indigent
litigants have meaningful access to the federal courts." Neitzke v. Williams,
490 U.S. 319, 324 (1989). Petitioner is a U.S. citizen, and sought to file a
civil lawsuit for damages relating to a personal injury claim that occurred in
the Eastern District of Texas. Petitioner, a traveler on a national highway, at
no fault of his own was injured by falling debris from a bridge under
construction at FM 450 and U.S. Highway 1-20.
2
In 2011 two of the most impartial judges in the state of Texas, Judges
Ward and Everingham retired from the bench. Drake was successful against
FedEx, which very few attorneys have been successful against this corporation because Judge Everingham treated pro se litigants equally to lawyers.
Unlike Judges Ward and Everingham, U.S. district Judge Folsom would sign
anything that Magistrate Caroline Craven would put before him, with no
concern for the consequences of his actions. Racism and bias is tolerated in
the small town mentality of the eastern district of Texas, Marshall division.
Magistrate Craven filed a frivolous recommendation based on false,
and misleading information. Craven's report recommended that Drake had
to obtain permission to file an IFP in that court. App. L, 85a-95a. However,
the Eastern District of Texas has never determined that any pleadings that
Drake has filed were not frivolous since Judge Folsom signed the March 15,
2012 injunctive order. When judges impede citizen's rights to have access to
the courts, it seriously obstructs the very act of "freedom of speech," and
deprives citizens of their rights to access to the courts.
Courts of this nature understand that this Court, the U.S. Supreme
Court, hears very few cases out of the thousands that are filed annually.
Thus, the probability that these types of violations of citizen's rights are
corrected is slim at best. Hence, it is urgent that this Court hears this writ.
There are no orders that would prevent Petitioner from filing a lawsuit
in the eastern district of Texas courts if he pays the filing fees. Yet, this is at
the heart of this writ. Not only did the court disrupt Drake's access to the
courts, but they also deprived him of the ability to file his petitions, sumonses, and other documents even when he had the filing fees in the form of a
3
U.S. postal money order, which violated his free speech (to petition), his
14th Amend-ment due process rights, his right to sue, give evidence, and be
parties to suits under 42 Usc §1981, which prohibited Drake's access to the
courts—and basically his constitutional rights as a citizen were violated.
A. Due Process Limits On Personal Jurisdiction
Due process rules are meant to protect persons not from the
deprivation, but from the mistaken or unjustified deprivation of life, liberty,
or property." Thus, the required elements of due process are those that
"minimize substantively unfair or mistaken deprivations" by enabling
persons to contest the basis upon which a state proposes to deprive them of
protected interests.2 The core of these requirements is notice and a hearing
before an impartial tribunal. The objective of the federal judges in the
Eastern District of Texas was to infringe on Drake's due process rights and
to prevent him from filing legitimate civil cases. It was a way to restrict the
rights of those who are less likely able to fight an unfair judicial system.
These restrictions comes in the form of state "vexatious litigant" statutes or
federal prefiling injunctions. Due process allows and requires an opportunity
for confrontation and cross-examination, and for discovery; that a decision
be made based on the record, and that a party be allowed to be represented
his or herself in a civil suit or by counsel in a criminal matter.
'Carey v. Piphus, 435 U.S. 247, 259 (1978). "[P]rocedural due process
rules are shaped by the risk of error inherent in the truth-finding process as
applied to the generality of cases." Mathews v. Eldridge, 424 U.S. 319, 344
(1976).
FA
The order that Judge Folsom signed by the recommendations
contained in Craven's report prefiling injunction, wrongfully enjoining
Petitioner from filing any new litigation with an IFP (which attacked his
rights as pled herein), based on the fact that Drake is underprivileged, acting
pro se, and an African American. More importantly, the eastern district of
Texas failed to notice Drake of that the court was considering filing a
prefiling injunction and set a hearing so that Drake could be heard. The court
took this action to ensure that no evidence would be entered into the courts
record, opposing the prefiling order. Drake was convicted without due
process. Even when Petitioner attempted to set a hearing on the prefiling
order, the eastern district of Texas refused to schedule a hearing as to continually harm Drake. Additionally, Magistrate Craven's report and recommendation was composed with untrue accusations, misleading statements, and
falsities. Most recently, in the matter of Drake v Wamczyk et a!, 3: 19-cv427, the Petitioner requested the Northern District of Texas to file into the
courts record the alleged order that Judge Craven signed in the eastern
district of Texas, which stated he could not file petitions in the Northern
District of Texas in forma pauperis. Yet, other federal courts in Texas are
using Folsom prefiling order to also violate Drake's rights to file forma
pauperis. App. J, 79a-84a. See App. L, 85a-95a, and App. 0, 100a-106a.
'Fuentes v. Shevin, 407 U.S. 67, 81(1972). At times, the Court has also
stressed the dignitary importance of procedural rights, the worth of being
able to defend one's interests even if one cannot change the result. Carey v.
Piphus, 435 U.S. 247, 266-67 (1978); Marshall v. Jerrico, Inc., 446 U.S.
238, 242 (1980); Nelson v. Adams, 529 U.S. 460 (2000) (amendment of
judgement to impose attorney fees and costs to sole shareholder of liable
corporate structure invalid without notice or opportunity to dispute).
5
The Northern District of Texas ignored the Petitioner's request for
their magistrate to file the Folsom's prefiling order into the courts record,
because the order does not state that Drake cannot file new litigation in any
other district in forma pauperis without permission, except the Eastern
District, and only if Drake is filing his litigation with an IFP. These are
serious violations of the Petitioner's rights, which if allowed to continue will
deface the very concept of blind justice in America. Factually, these core
rights that the courts complained of herein has trotted on the word justice,
and have ripped the eyes out of the statues of Contemplation of Justice and
Authority of Law. For if these acts are acceptable, justice is truly blind.
Drake also requested an evidentiary hearing, but the Northern District
overruled that request, which another due process violation.3 In other words,
the Texas federal courts, similar to Travis County, Texas courts are not
allowing the Petitioner any means to reverse its biased and frivolous
prefihing orders, which is an equal protection violations.
A fundamental requirement of due process in any proceeding,
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections. In addition, notice
"A procedural due process claim is composed of two elements: (1) the
existence of a property or liberty interest that was deprived and (2)
deprivation of that interest without due process." Bryant v. New York State
Educ. Dep't, 692 F.3d 202, 218 (2d Cir. 2012) (citation omitted). Parents
have a fundamental liberty interest in the "care, custody, and control of their
children." Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed.
2d 49 (2000); Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000);
Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999).
must be sufficient to enable the recipient to determine what is being
proposed and what he must do to prevent the deprivation of his interest.
Ordinarily, service of the notice must be reasonably structured to
assure that the person to whom it is directed receives it. Petitioner never
received any notice prior to Judges Folsom and Craven filing and signing the
prefihing injunction against the Petitioner, and Judge Folsom only echoed
Craven's due process violations. The Eastern District of Texas has refused to
schedule a hearing to address the merits of Folsom injunction. However,
even if a hearing were conduct-ed, the eastern district would ignore any
evidence to maintain the order.
II.
Statutory Background
The Fifth and Fourteenth Amendments of the United States
Constitution contain Due Process Clauses .4 Due process deals with the
administration of justice and thus the Due Process Clause acts as a safeguard
from arbitrary denial of life, liberty, or property by the government outside
the sanction of law. This Court interprets the clauses as providing four
protections: procedural due process (in civil and criminal proceedings),
substantive due process, a prohibition against vague laws, (as referenced in
'In re Winship, 397 U.S. 358, 364 (1970). See Estelle v. Williams, 425 U.S.
501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County
Court v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S.
510, 520-24 (1979). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth
Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a
reasonable doubt). On the interrelationship of the reasonable doubt burden and
defendant's entitlement to a presumption of innocence, see Taylor v. Kentucky,
436 U.S. 478, 483-86 (1978), and Kentucky v. Whorton, 441 U.S. 786 (1979).
7
the eastern district court of fabricating orders that does not exist and refusing
to allow Drake to schedule a hearing to reverse orders obtained by fraud).
The First Amendment (Amendment I) to the U. S. Constitution prevents the government from making laws which respect an establishment of
religion, prohibit the free exercise of religion, or abridge the freedom of
speech, the freedom of the press, the right to peaceably assemble, and the
right to petition the government for redress of grievances.
The case at bar focuses on "the right to petition," pursuant to the First
Amendment, and the right to sue, give evidence pursuant to 42 USC §1981,
due process claims, and access to courts. The Petition Clause protects the
right "to petition the government for a redress of grievances." This includes
the right to communicate with government officials, lobbying government
officials and petitioning the courts by filing lawsuits with a legal basis.
In California Motor Transport Co. v. Trucking Unlimited, 404 U.S.
508 (1972), this Court stated that the right to petition encompass "the
approach of citizens or groups of them to administrative agencies (which are
both creatures of the legislature, and arms of the executive) and to courts,
the third branch of Government. Certainly the right to petition extends to all
departments of the Government. The right of access to the courts is indeed
but one aspect of the right of petition." According to this Court, "redress of
grievances" is to be construed broadly: it includes not solely appeals by the
public to the government for the redressing of a grievance in the traditional
sense, but also, petitions on behalf of private interests seeking personal gain.
[J
Those rights not only protects demands for "a redress of grievances" but
also demands for government action.
The petition clause includes according to this Court the opportunity
to institute non-frivolous lawsuits. In Borough of Duryea v. Guarnieri
(2011), this Court stated regarding the Free Speech Clause and the Petition
Clause: "The right to petition is an expression directed to the government
seeking redress of a grievance."
III. Proceedings Below
Petitioner filed suit in the U.S. District Court for the Eastern District
of Texas, because: 1). this is the state and division, and jurisdiction where
the injury occurred and, 2). where most of all parties exist and resides.
Pursuant to a standing prefihing order signed by U.S. Judge Folsom,
Petitioner had to request permission if he files any pleadings in the Eastern
District of Texas by IFP only. Thus, Petitioner filed his request to permit the
filing of his personal injury claim on September 19, 2018 in forma pauperis.
The District Court denied the petition on the same day. App. G, 54a-56a.
Petitioner without delay obtained the filing fees from a friend to pay for the
filing of his petition because the statute of limitations was about to expire.
E parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760
(1945). Prisoners must have reasonable access to a law library or to persons
trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v.
Smith, 430 U.S. 817 (1978). Establishing a right of access to law materials,
however, requires an individualized demonstration of an inmate having been
hindered in efforts to pursue a legal claim.
5
But the federal court in Marshall, Texas nevertheless refused to accept the
Petitioner's pleadings citing a mere recommendation by Magistrate Don
Bush, a previous magistrate judge, but no order exists. App. H, App. H, 57a58a. When the Petitioner objected to the conduct of the clerk's office, he was
asked to leave the courthouse.
Petitioner filed a notice of appeal to the Fifth Circuit on October 10,
2018, and a leave to proceed in forma pauperis with the district court.
Petitioner also filed an amended notice of appeal on October 10, 2018. The
district court denied the Petitioners motion to proceed in forma pauperis,
and the Petitioner filed a motion to proceed in forma pauperis in the Fifth
Circuit on November 11, 2018. App. E, 37a-40a. If there is no record of the
pleading it's because it's not an uncommon occurrence in civil litigation for
clerk's offices in federal and state courts to destroy pro se litigant's
pleadings.
REASONS FOR GRANTING THE WRIT
Review of this important case should be granted.
The basic principles that the Petitioner is arguing in this writ are those
sanctioned and embodied in our U.S. Constitution and Bill of Rights. These
inalienable rights that were drafted by our forefathers were purposely meant
to be timeless, which measure no man by his wealth as a prerequisite to file
a petition in our courts. For a person of color in America, or any citizen of
this nation to be prohibited from filing a petition in a federal court when he
or she has the filing fees and all essential paperwork in 2018, viciously strips
away every word in the laws that govern this nation, as well as our judicial
10
body, and the "privileges and immunities" that all citizens are afforded.
This Court has met head on historical and landmark cases, such as:
Clay v. United States, Brown v. Board of Education, Bailey v. Patterson,
Jones v. Mayer Co., Batson v. Kentucky, Corfield v. Coryell and many other
decisions encompassing discrimination, segregation, and basic rights for all
citizens in America. The aforementioned cases will be nullified if this Court
fails to review this case. None of these landmark cases would have been
reviewable without the right to petition. To by-pass this case would be to bypass every important decision that this Court has made regarding the rights
of American citizens in its nearly 230-years of existence. This case centers
on the very essence of how the American jurisprudence is purportedly fairer
than courts in other countries. But the legal safeguards that were written by
our forefathers, and refined by case law, would have no impact on the
human factor of racism that unfortunately infiltrates incalculable decisions in
our judicial courts.
If a person of color is unlawfully prohibited from filing a petition in a
federal court in 2018, then can we not see the elements of enforced
segregation emerging back into our society? Factually, in this century, there
are very few courts in America, which are truly nonbiased and impartial to
people of color. Moreover, though there are some avenues to have cases
reviewed by appellate courts, the far majority of appeals courts lump pro se
litigants and prisoner cases together as being of lesser note worthiness to
give it more than a quick scan. And then, there are the appellate courts like
the Texas supreme court that defy our constitution by prohibiting pro se
litigants, like Drake from even filing his petitions in its court. Though this
11
type of conduct was thought to be eradicated in 2019, it lives on through the
hatred of individuals who represent our state and federal governments.
If this Court does not hear this matter, it will only codify and reinforce
with a stamp of approval, the type of conduct described herein which was
carried out by sworn alleged officers of the court. And this will only allow
continual abuse of pro se litigants by not only federal courts in Texas, but
also federal and state courts nationwide.
Further Reasons For This Court To Review This Important Case:
The Petitioner did not have an opportunity to be heard, give evidence,
or put on witnesses prior to the eastern district of Texas ordering a
pre-filing order/injunction against the Petitioner; 12
Petitioner had no notice of the pre-filing order/injunction prior to the
eastern district of Texas court ruling; 12
The eastern district of Texas injunction wasn't narrowly tailored;
The eastern district court was extremely biased against Drake and
failed to take lesser steps, if the court felt that restrictions were
warranted;
Pre-filing injunction was obtained by the judge's presenting false and
misleading evidence and statements against Drake;
'2Notice and an opportunity to be heard must be given to a litigant before a
pre-filing order is entered. This is a core requirement of due process. Mo/ski,
500 F.3d at 1058 (citing De Long, 912 F.2d at 1147); see also Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L.
Ed. 865 (1950)
12
The same cases that eastern district of Texas felt deemed frivolous,
which supported its frivolous prefiling order, the Petitioner settled
those cases in another district court with an impartial judge;
The eastern district of Texas pre-filing order/injunction was filed to
create a displacement of the Petitioner's rights.
In Drake's notice of appeal, he argued and set forth violations of his
rights by the district court including:
Violated the Petitioners constitutional and civil rights and
prevented the Petitioner from filing suit against the above
Respondents which was purposely driven;
Violated the Petitioners rights to access to the courts;
Violated the Petitioners due process rights;
Violated the Petitioners 14th Amendment Rights;
Violated the Petitioners First Amendment Rights of Speech;
Violated 42 USC §1981.
Despite all of the progress that has been made regarding the struggles
of African Americans and people of color in general in America, and the
advancement of human rights for all Americans, this case vacates the idea of
freedom, notice, due process, inalienable rights and impartiality in the very
heart of the promises preserved in the U.S. Constitution and Bill of Rights.
In effect, these irreplaceable fundamental laws, and guaranteed basic rights
have been systematically voided for certain citizens like the Petitioner.
13
The conduct described herein not only dilutes the integrity of this
nation's judicial courts, but it also eradicates any blind justice, truth, and
honor for nonwhites in the judicial system. The actions described herein of
the district court, Fifth Circuit, and the Travis County, Texas courts cannot
be acceptable or tolerable in a humane society that relies on the bridge of our
laws to pass judgment on others. If there is no law, there cannot be any
justice. If there is no justice, and no laws for all the people—how shall we
govern our nation? The type of conduct described herein was America's
past, but it cannot be permitted to be America's present or its future. Thus,
Drake respectfully requests for this Honorable Court to review his Writ of
Certiorari.
I. Fifth Circuit erred and abused its discretion by dismissing the
Petitioners Appeal.
A. Fifth Circuit was aware that the Petitioner was severely
injured in an accident with a semi-truck, but failed to stay or,
continue the Petitioner's appeal. Fifth Circuit also apparently
misappropriated the Petitioners motion for IFP.
Pursuant to Fifth Circuit Rule 42.3, that court may dismiss an appeal
for want of prosecution. Blacks legal dictionary describes "want of
prosecution" in the following manner: A case may be dismissed for want of
prosecution on failure of any party seeking affirmative relief to appear for
any hearing or trial, or failing to take certain specified actions of which the
party had notice. Once signed, the want of prosecution dismissal order has
the effect of closing the case. It constitutes a final order disposing of all
claims. The dismissal for want of prosecution is without prejudice.
14
But why would any impartial appellate court dismiss a case for want
of prosecution when the court has proof that the Appellant's sustained
serious injuries in a collision. App. C, 4a-16a. It is rather obvious that the
Fifth Circuit would not have ruled in the same, but for the exception that he
is acting pro Se. The actions against the Petitioner are strictly on account of
his race, African American, were justice is not the motivation or goal in the
average civil or criminal court in America. The rulings that the Fifth Circuit
made against Drake were an abuse of discretion. Especially in the case at bar
because there were no Appellees or Respondents to be prejudice if the Fifth
Circuit court allowed a reasonable period of time for the Petitioner to
recover from the injuries he sustained. It should speak volumes to this Court
that the Fifth Circuit dismissed the Petitioners appeal as a matter of form,
and refused to grant him any relief for the harsh violations of his rights
carried out by the district court in Marshall, Texas. App. B, 2a-3a.
The Fifth Circuit also alleged that the Petitioner failed to file his
financial affidavit, however, the Petitioner did file his declaration with the
Circuit Court. This document was filed with Drake's November 11, 2018
motions, but was removed from the courts docket mysteriously. In fact, on
page 1 (one) of Drake's "Opposition to Courts Dismissal," second paragraph, the Petitioner cautions the Fifth Circuit that he did file a financial
statement with the court. The Petitioner repeated the same assertion on page
2 (two), first paragraph of his opposition to the Circuit Courts dismissal.
If an appellate court does not receive an IFP, the Fifth Circuit should
15
have requested the full filing fees prior to dismissing the appeal. Milisap v.
Wilson, 1997 U.S. App. Lexis 42081.
The Fifth Circuit ignored Petitioner's medical notes and records. And
under the given circumstance, the Fifth Circuit abused its discretion in
dismissing the Petitioners case. See Drake Reconsider, App. D, 17a-36a.
Petitioner also requested the Fifth Circuit to grant limited discovery
regarding the prefiling injunction order recommended by Judge Craven and
signed by Judge Folsom. However, the Fifth Circuit denied all requests
made by the Petitioner. Thus, the Petitioner is requesting that this Court, to
order the Fifth Circuit, to grant the Petitioner limited discovery regarding
any injunctions, or sanctions that are prefiling orders that were signed by any
federal or state judge in the state of Texas. Petitioner would also request to
conduct depositions of all and any parties pertaining to prefiling injunctions
of the Petitioner. English-Speaking Union v. Johnson, 353 F.3d 1013.
In the entire state of Texas, there is only one judge who would be
reasonably impartial to the Petitioner, the Honorable Keith Ellison, presiding
in the Southern District of Texas. Starting with the 2004 wrongful declaring
the Petitioner as a vexatious litigant to the 2014 case where an assistant
attorney general perjured himself under oath to declare Drake as a vexatious
litigant, as well as Judges Folsom and Craven's prefiling injunction, and all
other cases involving the vexatious litigant statute or an injunction which is
meant to impede the Petitioner's access to the courts and filing lawsuits, the
16
Petitioner request the Court to order that these cases be retried or tried only
before the Honorable Keith Ellison regardless of the statutes of limitations,
and regardless if the case was heard or dismissed in state or federal court.
Petitioner has sustained severe economic damages and mental anguish
because of the conduct of the officers of the courts complained of, including
state and federal judges, and court employees named herein.
The Petitioner filed on December 6, 2018, a motion for reconsideration of the dismissal of his appeal with several other important motions
Drake filed with the Fifth Circuit. A motion to reconsider is the equivalent
of a Rule 60 motion. Arguably, the motion was timely. However, the
decision of the Fifth Circuit to deny the relief that the Petitioner was seeking
was error, and a serious but calculated and deliberate abuse of discretion.
The Fifth Circuit court should have granted the Petitioner's stay and
continuance because the court had evidence that Drake was involved in a
serious automobile accident. The court fully understood that the Petitioner
would suffer irreparable injury absent a stay because he was not medically
able to defend himself. Further, the denial of the stay caused Petitioner to
suffer substantial injury, (mental anguish and lost of his claim because the
statute of limitations had run), and it would have been in public interest and
confidence in our judicial system for the court to grant Drake some relief.
Unquestionably, the Fifth Circuit was fully aware of the probable irreparable
harm to the Petitioner by its refusal to grant the stay. The medical notes and
other medical evidence filed into the circuit courts record, and the declaration of Drake were the principal prerequisites for the issuance of his requested stay and continuance but the Fifth Circuit chose to deny his request.
17
II. The District Court violated the Petitioner's rights and the Fifth
Circuit Erred By Wrongfully Dismissing the Petitioner's Appeal.
As a U.S. citizen, the Petitioner has rights pursuant to the U.S.
Constitution and the laws of this nation. On September 19, 2018, the
Petitioner filed a request for permission to file his personal injury lawsuit
with the eastern district of Texas. However, the court denied the permission
immediately on the same day, September 19, 2018.6 App. H, 57a-58a. For
the reason that the statute of limitations was approaching, the Petitioner
borrowed money from a friend for the filing fees. On September 24, 2018,
Drake appeared again at the east Texas federal court with the filing fees in
the form of a U.S. postal money order, number: 25086224687, his original
petition, summonses, and cover sheet to timely file his lawsuit. See App. Zi,
173a-174a. Yet, the eastern district of Texas court refused to accept Drake's
original petition citing a mere suggestion made by Magistrate Don Bush that
Petitioner should obtain permission prior to filing his lawsuits in that district.
This refusal violated the Petitioner's 14th Amendment right of due process
rights, and Drake's First Amendment rights to petition, and violated 42 USC
§1981 right to sue, and give evidence, and Petitioner's access to the courts.
60rders denying applications to proceed IFP are appealable as final decisions
for reasons similar to those which prompted the Supreme Court to hold that the
order in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct.
1221, 93 L. Ed. 1528 (1949) was appealable. An order denying IFP status
finally decides an important issue which is collateral to the merits of the case. It
is an order which is "too important to be denied review and too independent of
the cause itself to require that appellate consideration be deferred until the
whole case is adjudicated." Cohen, supra, at 546, 69 S. Ct. at 1226. More
importantly, it is an order the review of which cannot be deferred until the
whole case is decided. Denial of IFP, if erroneous, tends to close the door of the
courthouse to the true pauper, forcing him to forfeit his day in court.
More importantly, Judge Bush in the Penske case said, "Plaintiff did not file
this suit in the Eastern District. It was removed from Denton County, and
Plaintiff has not sought in forma pauperis status. Therefore, he was not in
violation of Judge Folsoms order as it is narrowly read." Judge Bush
dismissed Drake's claim against Penske with prejudice. However, Petitioner
settled his claim against Penske. Drake v. Penske Truck Leasing Co., 2013
U.S. Dist. LEXIS 130851. And even though Drake settled with Penske,
Bush suggested: "further suits filed by this Plaintiff in this district whether
removed or not, in forma pauperis or not, be prohibited unless plaintiff seeks
permission from the chief judge of this district." App. Z, 152a-172a.
A. Violation of Petitioner's First Amendment Right of Free Speech
1. Prefihing Injunctions and States Vexatious Litigant Statute.
Many states, including Texas have a vexatious litigant statute. In 2014
an assistant attorney general by the name of Scot Graydon filed a motion to
declare the Petitioner as a vexatious litigant. Mr. Graydon perjured himself
under oath; a state court employee by the name of Warren Lloyd Vavra
portrayed himself as a judge, when he wasn't. Travis County clerk's office
destroyed the Petitioner's pleadings, the Third Circuit Court of Appeals
ignored evidence, and the Supreme Court of Texas refused to accept the
Petitioner's pleadings. The conspiracies and criminal actions by these state
actors violated the Petitioner's free speech by illegally determining him as a
vexatious litigant. The Petitioner is asking this Court to outlaw this statute.
For any value that might come from this statute, it is not out weighed by the
damage it does to citizens of this nation who represent themselves in a court
of law. The statute strips citizens of their right to access to the courts, and
19
silence their freedom of speech, violating the 1St Amendment, making due
process nonexistent.
Supposedly after being determined as a vexatious litigant a "judge"
would review the case to certify that the case has merit, or that the party
filing the case is likely to succeed in the case. Yet, what person in our legal
system could have such a foresight? None! If this was a possibility, lawyers
would not take cases and pour thousands of dollars into the case—just to
loose the case. But regardless how sound the case might be, if a pro se
litigant took a case that had merit and lost, he could be determined as a
vexatious litigant. The statute also notes in Section 11.051, that if a nonlawyer commenced, prosecuted, or maintained in propria persona at least
five litigations that they have not been successful—they could be determined
as vexatious. Attorney's files thousands of cases that they are not successful.
Many of the judges who are appointed as the "administrative judge" are
totally incompetent to review civil cases because they are criminal judges.
Judge Salvant denied the Petitioner request to file a lawsuit in a civil case
that the defendant was liable for the accident. Drake v Choi.
The vexatious litigant statute attacks the pro se litigants due process in
civil cases, as well as his or her access to the courts, and freedom of speech.
Any injunction on U.S. citizens meant to restrict their rights to access to the
courts is also a restriction on that citizens first amendment rights to petition.
"[P]erfect clarity and precise guidance have never been required even
of regulations that restrict expressive activity." Ward v. Rock Against
Racism, 491 U. S. 781, 794 (1989). But the State's difficulties with its restr-
20
iction go beyond close calls on borderline or fanciful cases. And that is a
serious matter when the whole point of the exercise is to prohibit the filing
of petitions, to sue, and give evidence. This is an excellent example of how
imperfect and callous our judicial system is in preventing U.S. citizens from
seeking justice and compensation in the judicial courts.
2. Article III Judge Folsom and Magistrate Craven's Prefihing
Injunction, And Its Effects On Federal Courts Nationwide.
Magistrate Caroline Craven who is presently presiding in the eastern
district of Texas filed an recommendation in her March 5, 2012 report that
Drake should not be allowed to file any new cases under IFP unless its
reviewed by that court. App. L, 85a-95a. Before reviewing the Craven's
recommendation, Drake wish to point out to the Court how she was assigned
to Drake's case. For some unknown reason, Article III Judge Rodney Gilstrap recused himself from Drake's case, which is difficult to accomplish of
a federal judge. App. M, 96a-97a. Thereafter, Judges Ward and Magistrate
Everingham retired, App. P, 107a-108a. But for some unknown reasons
Drake's case was referred to Judge Folsom, and Folsom referred the
Petitioner's case to Magistrate Craven, although, in the Marshall division
where Petitioner's case was pending, Magistrate Roy Payne was presiding.
Judge Payne assumed office December 28, 2011. Craven was over 70 miles
away from the Marshall division court. Therefore, why would Judge Craven
be appointed to the Petitioner's case, unless it was an conspired effort to
21
harm Drake, and to create a frivolous prefilmg injunction to forbid Drake
from having access to the court.
CRAVEN'S REPORT AND RECOMMENDATIONS:
Magistrate Caroline Craven's report and recommendations can be
viewed in its entirety. App. L, 85a-95a. On page 87a, Craven provides her
summary of three lawsuits that the Petitioner filed. On page 88a, Craven
concedes that Drake alleged these three cases were diverse and the amount
of damages he seeks was in excess of $75,000.00. Craven assert that the
Petitioner failed to make a showing of jurisdiction. However, this Court has
ruled that the "monetary amount requirement would be deemed satisfied
absent proof to a legal certainty that the requisite amount did not exist."
Additionally, this Court ruled as long as the plaintiff had a good faith belief
in the damage amount at the institution of the suit, the court's jurisdiction
should be maintained even if it is later shown to a legal certainty that the
jurisdictional amount did not exist. It is obvious that Craven role was to find
any reason to dismiss the Petitioner's lawsuit where impartiality wasn't a
consideration. Trinity Indus., Inc. v. Myers & Assocs., Ltd., 41 F.3d 229, 230
(5th Cir.), cert. denied, 516 U.S. 807, 133 L. Ed. 2d 17, 116 S. Ct. 52(1995).
On page 88a, the court reveals its bias towards Drake, "that he is well
known." Craven mention a few cases where the Petitioner failed to respond,
but in regards to voluntarily dismissing a case, attorneys do this all the time.
22
On page 91 a, Craven try to support her frivolous recommendation by
statements, which she knew or should have known, were false and
misleading. The case of Alice Andrews was litigated in state court for over
six years. What Craven's report does not reveal is that the Petitioner settled
that case. See App. T, 120a-124a. Further, state judge, Martin Hoffman,
presiding in the 68th Judicial District (Dallas County) declared Drake as a
vexatious litigant in light of the fact that liability wasn't an issue. Yet,
Craven report does not reveal that the Petitioner reversed Hoffman's
determining Drake as a vexatious litigant in the appeals courts. Craven state
in her report on page 92a, last line, that the Petitioner was trying to avoid the
requirements of the vexatious litigant order by filing in small claims court.
The statute does not include small claims courts. And yes, the Petitioner was
trying to avoid the incredible bias and unfairness of the statute, which not
even the best of attorneys in this nation, could maintain and practice law.
Thus, Craven has set out alleged facts, which are purposely misleading and were meant to harm the Petitioner. Drake disagree that his pleadings
failed to invoke federal jurisdiction as Craven claims on page 93a. On page
94a Craven claims that the statute of limitations had expired in the automobile personal injury accidents cases filed, which again is an untrue statement.
These auto personal injury cases involved UMIUIIvil. The statutes of limitations run 4-years from the time the insurance company deny the claim. Thus,
the cases were within the statute of limitations. Regarding Plaintiffs case
against BOA, (Bank of America), Craven considered that case also as
frivolous regarding the federal court jurisdiction and dismissed the case.
23
Plaintiff refiled the same case against BOA in the Southern District of
Texas. But the Petitioner drew the only impartial judge towards him in the
entire state of Texas, the Honorable Keith Ellison. Along with BOA, the
Petitioner filed suit against other large financial companies such as
American Express, and Citibank. Petitioner settled with all of the
defendants. See App. S, 116a-119a. As far as the Travelers case that Craven
found also to be frivolous, the FBI is presently investigating the case for
Travelers fraud against the Petitioner.
However, the Eastern District of Texas does not wish for Drake to be
successful in any of his litigation, on account of his race, black, and
apparently because he shouldn't be smart enough to navigate through the
complex federal courts. When courts assume facts, but do not allow discovery, the results is usually in error. And because of Craven's errors, her
misleading alleged facts, and her purposely made false claims that she
should have known were false, she recommended the frivolous prefihing
injunction as seen on page 94a:
"Eric Drake is prohibited from proceeding informa pauperis with any
civil action in this court whether he filed it in this court, he filed it in
another court and it was removed to this court, or he filed in another
federal court and it was transferred to this court unless he first
obtains from a district judge of this court leave to proceed in forma
pauperis in this court. If a civil action is removed or transferred to this
court, the case will be subject to summary dismissal unless, within 30
days of the date of removal or transfer, Drake seeks, in writing, leave
from a district judge of this court to proceed in this court."
-
-
The order that Article III judge Folsom signed, as a recommendation
by Magistrate Craven has many infractions of the Petitioner's rights. Folsom
order. See App. 0, 100a-106a. However, the order prohibits Petitioner from
24
appearing in the Eastern District of Texas, in forma pauperis, even if another
court grants the Petitioner's IFP. This is a means to deny Drake access to the
courts, even if another court that is not biased against Drake grants the IFP
the eastern district will deny it, App. 0, 105a. It is a means to deny Drake's
IFPs, and thus a clear violation of Drake's First Amendment right to
petition, 42 Usc §1981, due process of the 14th Amendment, and having
access to the courts. Because of the extreme bias of the Eastern District of
Texas against the Petitioner, there would be no possibility of Drake
obtaining an impartial hearing or trial in a civil or criminal matter. This
cannot be illustrated better than the case at bar, Drake v. Harrison County.
App. G, 54a-56a., and App. H, 57a-58a.
The order also reads that if one of Drake's cases are removed, or
transferred to the Eastern District of Texas, the case will be summary
dismissed unless the Petitioner obtains permission within 30 days. Based on
the conduct in Drake v. Harrison County, the eastern district of Texas court
most likely would not grant the permission and the case would be dismissed.
This was another means to violate the Petitioner's right to petition, right to
sue, and restrict his access to the courts because of his poverty.
REPERCUSSIONS OF CRAVEN REPORT/FOLSOM PREFILING ORDER:
As a result of the frivolous, but damaging prefiling injunction signed
by U.S. Judge Folsom, which was recommended by Magistrate Carven,
other federal and state courts have taken that order to likewise deny the
Petitioner access to the courts in forma pauperis. Similar actions has
occurred after an assistant attorney general by the name of Scot Graydon
filed a motion to declare the Petitioner as a vexatious litigant in Travis
County, Texas and conspired with others to carry it out.
The order signed by Folsom clearly set out that if the Petitioner files
any litigant in the Eastern District of Texas, or the case is removed, or
transfers, that Drake would have to obtain permission. In fact, Petitioner's
lawsuit in Drake v. Wamczyk, App. J, 79a-81a, was dismissed based on the
order Folsom signed but the Wamczyk case was originally filed in the
Southern District of Texas, but transferred to the Northern District of Texas
for disposal. The Northern District of Texas claims that they are just
following the order by Craven, which clearly state that the prefihing
injunction is would only affect petitions filed the Eastern District of Texas,
and only if those petitions are filed with an IFP. Petitioner filed another case,
Drake v State Farm, App. K, 82a-84a, which Petitioner's IFP was denied,
and the case was dismissed based on the order of Eastern District of Texas.
In Drake v. Nordstrom, App. Q, 109a-1 lOa, the Petitioner's IFP was denied
and case dismissed based on the order of the Eastern District of Texas.
Excerpts of the magistrate's recommendations, App. R, lila—il 5a. Other
courts have also used the frivolous prefiling order as far out as California,
Drake v. Safeway, App. Y, 143a-151a, district courts have conspired across
the nation to try and transfer any cases back to the Northern District of
Texas, where it will be dismissed, such as the actions shown in App. W,
130a-134a, Excerpts App. X, 135a-142a. Additional cases where the
courts denied wrongfully Petitioner's IFP, Drake v. Amer. Cent. Gas. Co.,
App. 125a-127a, and App. Drake v. Nathan Franson, V. 128a-129a.
26
It is "self-evident" that an indeterminate prohibition carries with it
"[t]he opportunity for abuse, especially where [it] has received a virtually
open-ended interpretation." Jews for Jesus, 482 U. S., at 576; see Heffron v.
International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 649
(1981) (warning of the "more covert forms of discrimination that may result
when arbitrary discretion is vested in some governmental authority").
If attorneys had to practice law under the same guidelines as a pro se
litigant pursuant to the vexatious litigant statute, or a prefihing order referenced herein that Judge Folsom signed, all attorneys in the United States
would be determined as vexatious litigants. State and federal judges are able
to run rampant with these prefiling injunctions that block access to our
courts, therefore this Court must act to prevent this conduct from continuing,
because there are no even-handed ways in which these cases are heard, and
they are not guided by objective or even workable standards.
Cases like the one before this Court and or similar cases "present[]
this Court with a particularly difficult reconciliation: the accommodation of
the right of citizens to engage in litigation to settle their disputes and the
authority of a court to control pro se litigants. Courts in this nation have
many ways to control those that come before it without violating nonlawyers rights, condemning them as vexatious litigants does or frivolous
orders such as noted in App. 0, 100a-106a. Those same methods of control
are those that attorneys have to face before a court of law.
If this Court blindly accept this misguided invitation to sanction a pro
se litigant under the name of "vexatious litigant" which is motivated by
animosity toward those who represent themselves, in the name of a super27
ficial claim of controlling the courts and economy by not wasting funds of
the court, the Court redeploys the same dangerous logic, underlying the acts
of a state own government regime, that merely replaces one "gravely wrong"
with another that is used to attack U.S. citizens who prefer to represent
themselves in this nations courts. In Drake v. Niello, 2:17-cv-1036, after
Niello's motion to dismiss was denied, Niello filed a judgment on the
pleadings, which was frivolous, but then out of desperation Niello filed also
a motion to declare Drake vexatious—it's a defense attorney's fall-back
when all other dispositive motions fail.
In the case at bar, our judicial system have allowed judges to monitor
and correct supposedly those who are not attorneys, by subjecting them to be
labeled as vexatious litigants, or by filing prefihing injunctions that are
frivolous and made up with false and misleading information. These actions
breaches the First Amendment Rights to petition, access to the courts, while
those who are officers of the court and clerk's of court, commit actual felony
crimes to convict citizens like the Petitioner as vexatious litigants. Most
disturbing, nothing is done to correct this wrongful act, which is a much
greater disservice to this nation judicial courts economy than non-lawyers
filing his or her own pleadings.
What's more troubling, given the stark parallels between a non-lawyer
filing his or her own pleadings, and judicial officers committing crimes is
that those who are sworn to uphold the law are not punished for their crimes.
In reviewing this writ, this Court must pause to remember its own
high duty to the Constitution and to the rights it secures of its citizens. Indisputably, if these types of prefiling injunctions and practices are allowed to
continue, it will cause irreparable harm to the Petitioner and to other citizens
of this Country in the absence this Court intervention.
A1
3. Free Speech (the right to petition) Violation.
The First Amendment to the U.S. Constitution prevents the government from making laws which respect an establishment of religion.. or the
.
right to petition the government for redress of grievances. Drake will focus
on the First Amendment right to petition in this writ.
Despite the common misconception that the First Amendment
prohibits anyone from limiting free speech, the text of the amendment only
prohibits the federal government, along with the states and local
governments, from doing so. In the case at bar, a federal court in Texas and
the state of Texas through the attorney generals office, along with the Texas
Supreme Court and the district clerk in Travis County are the governments
that placed restrains on the Petitioner's speech by prohibiting his right to
petition, in violation of his First Amendment Rights. It is the Petitioner's
opinion that the state governments as set forth through the Texas attorney
generals office, the clerk of court, and other court employees in Travis
County, Texas and the Eastern District of Texas, and Fifth Circuit court that
wrongfully dismissed the Petitioner's appeal "depriv[ed]" him of a "right...
secured by the Constitution." 42 U.S.C. §1981, and Rev. Stat. §1979, §1983.
"Petitioning" is a nonviolent legal means of encouraging or disapproving government action, whether directed to the judicial, executive or
legislative branch. In United Mine Workers of America v. Illinois State Bar
Association (1967), this Court exalted the right to petition as "among the
most precious liberties safeguarded by the Bill of Rights" and implicit in
"the very idea of government." This Court deemed this right as a fundamental liberty, protected against encroachment by federal, state and local
governments. Hence, in NAACP v. Button (1963), it formed the conceptual
basis for the Court's ruling that a civil rights group could not be barred from
soliciting people to serve as litigants in civil rights cases. The Court
declared: "Litigation may well be the sole practical avenue open to a
minority to petition for a redress of grievances." Yet, this very precious,
nonviolent tool which is a right is what actors of the State and federal
governments confiscated from the Petitioner as a means to silence him—to
force him to use in what appears violence—to permanently silence him.
The First Amendment right "to petition the Government for a redress
of grievances" includes a right of court access, but narrowly define this right
as the right to "sue" to file petitions. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and
due process, missing the distinct significance of the Petition Clause when
individuals petition courts. The most significant threats to court access today
occur before it's actually filed when state and federal governments prevents
non-lawyers from even filing their petitions as in the case of the Petitioner.
Ubi jus ibi remedium —"where there is a right, there should be a
remedy." This ancient legal maxim articulates a great inspirational ideal.
'
But it is not an accurate description of the American legal system. Not every
person who suffers (or fears) legal injury obtains a remedy from the courts.
In fact, the American judicial system can be the most harshest place for a
30
person of color to enter—for it either takes away their freedom by placing
them in jails or prisons, or obstruct their freedom to petition by prohibiting
them from filing civil cases. Either way, the denial of "freedom" has been a
cornerstone of American jurisprudence for people of color for centuries.
In the face of remedy denial, the critical question is whether this Court
will put an end to the abuses used by state and federal courts in the form of
prefihing injunctions as set forth in this writ, which are meant to harm only
pro se litigants who are citizens of this nation and enjoys an enforceable
right to a remedy. An enforceable remedial right would entail a correlative
duty upon this Court to provide redress and thereby impose constraints on
state and federal courts that use and misuse prefiling injunctions against U.S.
citizens to deny their rights to petition and have access to the courts.
Citizens of this nation have a constitutional right to a remedy based on
the Due Process Clause, the First Amendment, the Equal Protection Clause,
as well as the 14th Amendment and to have access to the courts.' Citizens of
this nation have a constitutional avoidance canon because the Court's
interpretation may violate the "fundamental right" to "access the courts"
guaranteed by the "First Amendment right to petition."
Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1485-86
(1987) [hereinafter Of Sovereignty]. The equitable analogue of this legal
maxim is "equity will not suffer wrong without a remedy." JOHN NORTON
POMEROY, 2 A TREATISE ON EQUITY JURISPRUDENCE AS
ADMINISTERED IN THE UNITED STATES OF AMERICA ADAPTED FOR
ALL THE STATES AND TO THE UNION OF LEGAL AND EQUITABLE
REMEDIES UNDER THE REFORMED PROCEDURE § 423 (Spencer W.
Symons ed., 5th ed. 1941).
31
In Rhodes v. Chapman, this Court rejected an Eighth Amendment
challenge to prison conditions, but emphasized that the federal courts have a
duty to remedy constitutional violations. The Petitioner is not a prisoner,
and yet his rights to have access to the courts have been barred, stripped
away, and prohibited which has cost the Petitioner thousands of dollars in
lost compensation, and treatment that is less than known terrorists who the
U.S. government held in Guantanamo Bay. The right to access to the courts
for non-prisoners comes with the same right to pay taxes and not to commit
crimes. If the government takes away one right, it cannot complain about a
citizen not providing this nation in other ways.
One of the earliest petitions on record dates back to the year 1644. A
group of eleven petitioners, not including their children, entreated the
Council of New Netherland for freedom, based on the claim that it was
impossible for them to support their growing families under slavery. These
slaves were given at least their partial freedom.
8More than twenty Supreme Court cases over the past five decades, one or
more Justices has asserted or assumed that a lawsuit is a petition, without a
single colleague disputing the premise. See Octane Fitness, LLC v. ICON
Health & Fitness, Inc., 134 S. Ct. 1749, 1757 (2014); Woodford v. Ngo, 548
U.S. 81, 122-23 (2006) (Stevens, J., dissenting); BE & K Constr. Co., 536 U.S.
at 525; Harbury, 536 U.S. at 415 & n.12; Lewis v. Casey, 518 U.S. 343, 406
(1996) (Stevens, J., dissenting); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 636
(1995) (Kennedy, J., dissenting); Prof 1 Real Estate Inv'rs, Inc. v. Columbia
Pictures Indus., Inc., 508 U.S. 49, 56-57 (1993); Hudson v. Palmer, 468 U.S.
517, 523 (1984); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-97 (1984).
32
Yet, this is the sum of the Petitioners complaint, that actions of the
state and federal courts complained about in this writ have regressed back to
the days of slavery and have enacted a new kind of slavery that blots out and
sever rights enshrined in our Constitution and Bill of Rights for certain class
of people like the Petitioner to have access to the courts.
4. Violation of 42 U.S.C. §1981 And Access to The Courts.
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to sue
(file petitions), be parties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons and property as enjoyed
by white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other.
Petitioner race is African American. Magistrate Caroline Craven in
the Eastern District of Texas filed a frivolous prefiling injunction against the
Petitioner. Since that time, the Petitioner has been unsuccessful in even
91n the 1972 case of Cruz v. Beto, the court explicitly identified "court access
right" as a component of the Petition Clause. See 405 U.S. 319, 321 (1972)
("[P]ersons in prison, like other individuals, have the right to petition the
Government for redress of grievances which, of course, includes 'access of
prisoners to the courts for the purpose of presenting their complaints."
(quoting Avery, 393 U.S. at 485)). In three prisoner cases over the next three
years, lawsuits were treated as First Amendment petitions without any Justice
disputing the premise. See Montanye v. Haymes, 427 U.S. 236, 244 (1976)
(Stevens, J., dissenting); Fell v. Pro cunier, 417 U.S. 817, 828 (1974); Oriwein
v. Schwab, 410 U.S. 656, 660 n.5 (1973).
33
petitioning the eastern district of Texas court to set a hearing on the matter.
No hearing was conducted prior to the wrongful prefiling injunction, which
are due process right and equal protection violations.
It is undisputed that the Petitioner is a member of the racial minority.
Travis County, the Attorney Generals Office of Texas, and the Eastern
District of Texas conspired against the Petitioner, in particularly: Scot
Graydon (assistant attorney general of Texas), Warren Lloyd Vavra, Travis
County court employee who portrayed himself as a judge, Senna Willing
who conspired with Scot Graydon to declare Drake vexatious, Lora
Livingston (state judge in Travis County), Blake Hawthorne (clerk of court
at Texas Supreme Court who refused to accept Petitioners pleadings), Scott
Field (Third Court of Appeals justice who use to be employed with the
Texas attorney generals office and who conspired with Scot Graydon),
Melissa Goodwin (Third Court of Appeal justice), Velva L. Price (clerk of
district court in Travis County), Wayne Salvant (state criminal judge who
denied the Petitioners request to file his personal injury case against Choi),
Mark Pittman (Second Court of Appeals justice who advised Salvant to deny
the request to allow Petitioner to file suit against Choi), those state judicial
officers violated 42 USC §1983, and committed actual felony crimes against
the Petitioner. Each of these actors race is white.
These are actual crimes committed by state and federal employees,
but the state and especially federal actors complained about in this writ, fear
34
no reprisals or punishment for their crimes and or wrongdoing that they
committed against Drake, for the reason there will be: no investigations by
the FBI or Postal Inspectors [intercepting and destroying pleadings delivered
to the courthouse], because they fully know that our judicial system does not
care about what occurs to a single or group of nonwhites who are not
attorneys in this nations civil courts. The actions of these named individuals
prevented Drake from filing suit, giving evidence, and to be a party to suits.
The Bill of Rights does not declare who shall or shall not have the
right to sue, give evidence, and be a party to a suit. This includes even those
that have been wrongfully declared as vexatious litigants like the Petitioner
have inalienable rights, but those named herein have taken it upon
themselves to hinder the Petitioner rights to sue, give evidence, and be a
party to a lawsuit for profit, and as an act of racism and or for their
entertainment.
5. The District Court Improperly Denied the Petitioners IFP.
The Eastern District of Texas denied the Petitioners IFP to proceed in
the district court and to proceed to the Fifth Court of Appeals. However, the
Petitioner has never been provided a means to have an evidentiary hearing
conducted on any allegations of the Eastern District of Texas prefiling
injunction, and even if there were such a hearing, it would have to be
conducted by the only one non-hostile federal judge against the Petitioner in
the entire state of Texas, Honorable Keith Ellison, in the Southern District.
35
Petitioner IFPs have been denied based on the fraudulent, biased, and
misleading allegations contained in the order signed by Judge Folsom. App.
0, 100a-106a. As set forth herein, there is an assault on the Petitioners
rights to sue and file petitions by federal courts nationwide. Unquestionably,
the district courts denials of the Petitioners IFPs were improper, and an
extreme abuse of discretion that must be addressed by this Court. Because
the federal court's reasoning for denying the Petitioner's IFP was based on
false and misleading information, and because of extreme biasness as shown
in this writ, Drake recommends that this Court orders the Southern District
of Texas, and only the Honorable Keith Ellison, U.S. district judge to
conduct hearings on whether the Eastern District of Texas facts are correct
and if the court had just cause to deny the Petitioner's IFPs which were filed
in that court. Even if ordered by this Court, the eastern district of Texas will
not conduct an impartial hearing. Lane v. Brown, 372 U.S. 477; Williams v.
Kaiser, 323 U.S. 471; Rodriquez v. United States, 395 U.S. 327; and Adkins
v. E. I. DuPont de Nem ours & Co., 335 U.S. 331.
Further, the Petitioner, Eric Drake, request that this Court also orders
the Southern District of Texas, and only the Honorable Keith Ellison, to
conduct hearings on the violations of the Petitioner's rights regarding Travis
County, the Attorney Generals Office of Texas, the district clerk's office
practices and customs (the destroying of documents that the Petitioner filed),
as well as other matters concerning declaring the Petitioner as a vexatious
litigant. In so much as the Petitioner has lost over a million dollars because
36
of the conspired efforts of the parties named herein and others, the Petitioner
further request that this Court orders that every lawsuit filed by the
Petitioner or was prevented from being filed because he was declared a
vexatious litigant, be tried, re-tried by the Southern District of Texas, and
only the Honorable Keith Ellison, and by no other judge in the entire state of
Texas. And that the Honorable Ellison will have the authority to try and retry both state and federal cases involving the Petitioner since the first
determination that the Petitioner wrongfully determined as a vexatious
litigant. Petitioner would also request an investigation by the FBI into the
crimes committed by state and federal judges and the clerk's offices.
There is an unconstitutional potential for bias against the Petitioner in
the entire state of Texas judicial courts. Rippo v. Baker, 137 S. Ct. 905.
There is no probability that the Petitioner could ever obtain an impartial
hearing, judgment, or trial in the Eastern District, Northern District, or
Western District of Texas Courts, and only one judge in the Southern
District of Texas would be reasonably impartial and evenhanded.10
Bracy v. Gramley, 520 U. S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997).
Our Constitution demands, and our Country deserve, a Judiciary
willing to hold our judicial court accountable when they defy our most
sacred legal commitments and laws.
'°"The probability of actual bias on the part of the judge or decision maker
is too high to be constitutionally tolerable." Withrow v. Larkin, 421 U. S. 35,
47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); see Williams v. Pennsylvania,
579 U. S.136 S. Ct. 1899, 195 L. Ed. 2d 132, 141 (2016).
37
The true issues before this Court is not whether the vexatious litigant
statute, and the actions of a federal court of refusing the Petitioner's pleading
are offensive to our Constitution and the rights of citizens to have access to
the courts—we know this to be true. Rather, the narrow question here is
whether this Court will put an end to the conduct described herein and
outlaw statutes like the vexatious litigant statute in all 51 states of this nation
which were written to make non-lawyers more accountable to the courts and
society, than license attorneys.
And though its standard practices for many federal courts to condemn
a non-lawyer to an injunction, without a hearing or the ability to conduct an
evidentiary hearing or notice of a hearing, nonetheless, this practice is
unconstitutional. A reasonable observer, presented with all "openly available
data," the text and "historical context" would have to take some action to
prevent the continuation of unconstitutional actions that strips pro se
litigants of their rights to have unabridged—access to our judicial courts.
To allow the conduct described herein by judicial officers to continue,
would pull the pillars down from the very ceiling of this Court and cave in
our understanding of justice, impartiality, integrity, and most of all, the
denouncing of offensive discrimination—in an almost white nationalism
manner—whether its against women, people of different races, religions,
anti-foreign sentiments, sexual orientation, pro se litigants or any other
citizen of this nation.
Petitioner should not be refused access to the courts on account of his
poverty. Petitioner filed his IFP with the Fifth Circuit timely, but it is now
removed from the record. See App. E, 37a-40a, the clerks record showing
IFP filed but when you click on it, it brings up another document. This is to
hide the fact that Drake filed his IFP timely.1' Other appellate courts have
reversed dismissals of IFPs: Escobedo v. Applebees, 787 F.3d 1226, Hicks v.
Collins, 1995 U.S. App. LEXIS 42374; Ginelli v. Los Angeles Fire Dep't,
1994 U.S. App. LEXIS 34697.
The Eastern District of Texas did not state that it believed Petitioner
did not qualify as a pauper, but simply that the request is denied. The eastern
district court did not state that the Petitioner's claims in Drake v. Harrison
were frivolous but referred to other cases—denying Drake relief. Drake filed
a motion to proceed in forma pauperis and an affidavit listing his assets as
required by § 1915(a)(1). See Haynes v. Scott, 116 F.3d 137, 139-40 (5th
Cir. 1997).
An order denying an application to proceed IFP is immediately
appealable and is properly before this court. See Flowers v. Turbine Support
Division, 507 F.2d 1242, 1244 (5th Cir. 1975). The denial of IFP status is
reviewed for an abuse of discretion. Id. at 1243-44. Whether a party may
proceed IFP in the district court is based solely upon economic criteria.
Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976). Poverty sufficient to
qualify does not require absolute destitution. Adkins v. E.I. du Pont de
Nemours & Co., 335 U.S. 331, 339, 69 S. Ct. 85, 93 L. Ed. 43 (1948). The
central question is whether the movant can afford the costs without undue
hardship or deprivation of the necessities of life. Id. at 339-40.
39
CONCLUSION
This case represents an appalling legal acceptance in our civil judicial
courts, of how non-lawyers rights as citizens of this nation are stolen from
them, just as much as Negro's rights were suppressed and stolen from them
during the 1800s as slaves. It's one of the closest examples of modern day
civil slavery and race discrimination in plain view: the denial of core constitutional rights of black and other nonwhite citizens to have access to our
courts, file lawsuits, and to have impartial hearings, trials, and judgments.
Nine out of ten state and federal judges would disregard the {l}aw of
the land to defeat or silence a pro se litigant from being successful in civil
litigant, especially if a large predominantly white law firm was defending
the action. Nonetheless, the answer is not to infringe upon the Petitioners
rights, a citizen of the United States, but to rule impartially—which is rare.
Hence, Petitioner Eric Drake, request for this Court to grant his writ of
certiorari.
Respectfully submitted,
Eric Drake
Pro Se
10455 North Central Expressway
Suite 109
Dallas, Texas 75231
912-281-7100
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