Petition for Writ of Certiorari — Michael Anthony Deem, Petitioner v. Lorna M. DiMella-Deem, et al.

No.

IN THE

Supreme Court of the United States

MICHAEL A. DEEM, PETITIONER,

v.

LORNA M. DIMELLA-DEEM AND LINDA EICHEN, ESQ.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MICHAEL A. DEEM

Pro Se

26 Keystone Road

Yonkers, NY 10710

deem1779@gmail.com

914-482-3867

CURRY & TAYLOR  202-350-9073

i

QUESTIONS PRESENTED

Petitioner filed federal question claims against

Respondents for, inter alia, violation of his rights to

exercise his religion, keep and bear arms, associate with

his children, due process and malicious prosecution. The

District Court dismissed the complaint sua sponte. The

Second Circuit affirmed pursuant to its Domestic

Relations Abstention Doctrine and awarded costs.

I.

MAY LOWER FEDERAL COURTS REFUSE

TO EXERCISE JURISDICTION OVER

FEDERAL QUESTION CLAIMS IN THE

ABSENCE OF A WARRANT TO DO SO

FROM CONGRESS OR THIS HONORABLE

COURT?

II.

IS THE SECOND CIRCUIT’S DOMESTIC

RELATIONS ABSTENTION DOCTRINE

UNCONSTITUTIONALLY VAGUE?

III.

DID

PETITIONER

DEMONSTRATE

OBSTACLES TO A FULL AND FAIR

DETERMINATION OF HIS FEDERAL

QUESTION CLAIMS IN STATE COURT

THAT PREVENT THE OPERATION OF

THE SECOND CIRCUIT’S DOMESTIC

RELATIONS ABSTENTION DOCTRINE?

ii

RULE 14(1)(b)

PARTIES TO THE PROCEEDING

Petitioner

MICHAEL ANTHONY DEEM

Respondents

LORNA M. DiMELLA-DEEM,

LINDA EICHEN, ESQ.,

HON. HAL B. GREENWALD, F.C.J., and

HON. JOSEPH A. EGITTO, A.J.S.C.,

STATEMENT OF RELATED CASES∗

I.

Deem v. DiMella-Deem, et al., No. 19-1111, U.S.

Supreme Court. Petition for Writ of Certiorari to

the U.S. Second Circuit Court of Appeals. Fully

submitted.

Deem v. DiMella-Deem, et al., No. 18-2266, U.S.

Court of Appeals for the Second Circuit.

Judgment entered October 30, 2019. Published.

Motion for Rehearing en banc denied December

11, 2019.

∗

Petitioner has omitted all matters arising from his matrimonial

and custody proceedings, including Deem v. Colangelo, No. 19-590

(U.S.), pet. denied (Jan. 13, 2019).

iii

Deem v. DiMella-Deem, et al., No. 18-cv-6186

(NSR), U.S. District Court for the Southern

District of New York. Judgement entered July

24, 2018.

II.

Deem v. DiMella-Deem/DiMella-Deem v. Deem,

File No. 153622, White Plains Family Court,

New York State. Ex Parte Default Order

entered June 7, 2019, denying Petitioner all

contact with Ms. DiMella-Deem and the parties’

two children until June 7, 2021, due to one

violation against Ms. DiMella-Deem.

Deem v. Deem, No. 2018-7055, New York State

Supreme Court Appellate Division, Second

Department. Order entered June 18, 2018,

denying application to vacate no contact

restraining order.

Deem v. Deem, No. 2018-9179, New York State

Supreme Court Appellate Division, Second

Department. Order entered August 23, 2018,

denying order to show cause to vacate no contact

restraining order.

Deem v. Deem, No. 2018-14227, New York State

Supreme Court Appellate Division, Second

Department. Order entered January 9, 2019,

denying order to show cause to vacate no contact

restraining order.

III.

Matter of Deem, et al. v. Westchester County

Dept. of Soc. Srvcs., et al., No. 2368-2018,

Supreme Court of the State of New York,

Westchester

County.

Judgment

entered

iv

December 14, 2018, denying review of Child

Protective

Service’s

investigation

into

Respondent DiMella-Deem for lack of standing.

IV.

Matter of the Pistol License of Deem, No.

800073/2018, New York State County Court,

Westchester County. Judgment entered May 28,

2019,

dismissing

Westchester

County’s

application to revoke pistol license.

V.

People v. Deem, No. 18110057, Briarcliff Manor

Village Court, New York State. Judgment

entered June 12, 2019, dismissing misdemeanor

complaint on default.

VI.

Deem, et al. v. DiMella-Deem, et ano., No. 20201113, New York State Supreme Court Appellate

Division, Second Department. Pending appeal of

denial of writ of habeas corpus regarding Family

Court Order.

Deem, et al. v. DiMella-Deem, et ano., No.

69596/2019, New York State Supreme Court,

Westchester County. Judgment entered January

13, 2020, denying writ of habeas corpus

regarding Family Court Order.

VII.

Deem, et al. v. DiMella-Deem, et ano., New York

State Court of Appeals. Order denying petition

for writ of habeas corpus regarding matrimonial

action dated March 24, 2020.

Deem, et al. v. DiMella-Deem, et ano., No. 2020204, New York State Supreme Court Appellate

Division, Second Department. Refusal of writ of

v

habeas corpus regarding matrimonial action to

be filed.

vi

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................................................... i

RULE 14(1)(b) ...................................................................... ii

TABLE OF AUTHORITIES ................................................... vii

OPINIONS BELOW .................................................................1

JURISDICTION ......................................................................1

RELEVANT PROVISIONS INVOLVED ................................1

STATEMENT ..........................................................................3

REASONS FOR GRANTING THE PETITION .....................16

CONCLUSION .....................................................................23

APPENDIX

Circuit Court Decision ......................................................1a

District Court Decision .....................................................5a

vii

TABLE OF AUTHORITIES

Page

CASES

Ankenbrandt v. Richards, 504 U.S. 689, 112

S.Ct. 2206, 119 L.Ed.2d 468 (1992).......................... 17, 19

Chambers v. Time Warner, Inc., 282 F.3d 147

(2d Cir. 2002) ................................................................... 22

Deem v. DiMella-Deem, et al., No. 19-1111

(U.S.) ............................................................................ 3, 13

Deem v. DiMella-Deem, 941 F.3d 618 (2d Cir.

2019) ...........................................................................19, 22

Deem v. DiMella-Deem, et al., No. 19-1630 (2d

Cir.) .................................................................. 4, 12, 22, 23

Deem v. Indelicato, et al., 7:09-cv-1842 (SCR) .. 14 (fn. 2)

Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66

L.Ed.2d 185 (1980) ................................................... 16, 17

Grayned v. City of Rockford, 408 U.S. 104, 92

S.Ct. 2294, 33 L.Ed.2d 222 (1972) ................................. 18

Gutierrez de Martinez v. Lamagno, 515 U.S.

417, 115 S.Ct. 2227, 132 L.Ed.2d 275 (1995) ................ 23

Knick v. Township of Scott, Pennsylvania, 588

U.S. __, 139 S.Ct. 2162, 204 L.Ed.2d 558

(2019) ................................................................................18

viii

Marshall v. Marshall, 547 U.S. 293, 126 S.Ct.

1735, 164 L.Ed.2d 480 (2006) ...................................16, 17

Monell v. New York City Dept. of Soc. Srvcs.,

436 U.S. 658, 98 S.Ct. 20118, 56 L.Ed.2d 611

(1978) ..........................................................................20, 21

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5

L.Ed.2d 492 (1961) ....................................................20, 21

N.Y.S. Bd. of Elections v. Lopez Torres, 522

U.S. 196, 128 S.Ct. 791, 169 L.Ed.2d 665

(2008) ...................................................................................8

Porter v. Warner Holding Co., 328 U.S. 395, 66

S.Ct. 1086, 90 L.Ed. 1332 (1946) ...................................18

Schottel v. Kutyba, 06-1577-cv (2d Cir. Feb. 2,

2009) .................................................................................19

Sessions v. Dimaya, 584 U.S. ___, 138 S.Ct.

1204, 200 L.Ed.2d 549 (2018)..........................................20

CONSTITUTIONAL PROVISIONS

U.S. Const., Amend. I .............................................. passim

U.S. Const., Amend. II .........................................4, 6, 7, 19

U.S. Const., Amend. IV ......................................................4

U.S. Const., Amend. V .......................................................8

U.S. Const., Amend. IX ....................................................19

ix

U.S. Const., Amend. XIV ....................................... passim

U.S. Const., Art. III, § 2 ................................................... 17

New York State Constitution, Article VI, § 7

………............................................................................... 2, 22

New York State Constitution, Article VI, § 13 ........ 2, 22

STATUTES AND RULES

18 U.S.C. § 2265 ............................................................. 7, 15

18 U.S.C. § 2266 .............................................................. 7, 15

28 U.S.C. § 1254 ................................................................... 1

28 U.S.C. § 1331 ................................................................... 4

28 U.S.C. § 1343 ................................................................... 4

42 U.S.C. § 603 .................................................................... 20

42 U.S.C. § 1983 ......................................................... passim

42 U.S.C. § 1985 ................................................................... 4

Civil Rights Act of 1871 .............................................. 17, 21

N.Y.S. Family Court Act, Art. 8 ................................. 5, 13

N.Y.S. Family Court Act, § 842-a (7) ......................... 6, 13

22 NYCRR 130-1. ............................................................... 15

1

OPINIONS BELOW

Deem v. DiMella-Deem, et al., 19-1630 (2d Cir.

April 9, 2020). Summary Order affirming dismissal of

federal question claims, sua sponte. Unpublished.

Before Amalya L. Kearse, Jose A. Cabranes and

Michael H. Park, Circuit Judges. (1a)

Deem v. DiMella-Deem, et al., 18-11889-cv

(S.D.N.Y. May 2, 2019) (KMK). Order of Dismissal. (5a)

JURISDICTION

Petitioner invokes this Court’s jurisdiction under

28 U.S.C. §1254(1).

RELEVANT PROVISIONS INVOLVED

U.S. Constitution, Article III, § 2

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution

[and] the Laws of the United States[].

U.S. Constitution, Amendment XIV

[N]or 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.

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

2

State [], subjects, or causes to be subjected, any

citizen of the United States [] to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding.

New York State Constitution, Article VI, § 7

The supreme court shall have general original

jurisdiction in law and equity [].

New York State Constitution, Article VI, §

13

b. The family court shall have jurisdiction over

the following classes of actions and proceedings

which shall be originated in such family court in

the manner provided by law: (1) the protection,

treatment, correction and commitment of those

minors who are in need of the exercise of the

authority of the court because of circumstances

of neglect, delinquency or dependency, as the

legislature may determine; (2) the custody of

minors except for custody incidental to actions

and proceedings for marital separation, divorce,

annulment of marriage and dissolution of

marriage; (3) the adoption of persons; (4) the

support of dependents except for support

incidental to actions and proceedings in this state

for marital separation, divorce, annulment of

marriage or dissolution of marriage; (5) the

establishment of paternity; (6) proceedings for

conciliation of spouses; and (7) as may be

provided by law: the guardianship of the person

3

of minors and, in conformity with the provisions

of section seven of this article, crimes and

offenses by or against minors or between

spouses or between parent and child or between

members of the same family or household.

Nothing in this section shall be construed to

abridge the authority or jurisdiction of courts to

appoint guardians in cases originating in those

courts.

STATEMENT

This matter is a continuation of the

constitutional misconduct at bar in Deem v. DiMellaDeem, et al., No. 19-1111 (U.S.), fully briefed and

currently pending before this Honorable Court. That

matter concluded with Judge Gordon-Oliver extending

for two months a “no contact” restraining order (RO),

based on fabricated allegations, without providing

Petitioner a post-deprivation hearing.

The New York State Supreme Court Appellate

Division, Second Department has several policies that

violate constitutional and statutory rights of litigants.

Those policies prevent litigants from successfully

defending against ROs once they issue. Respondent

Eichen and Judge Greenwald knew of those policies.

They also knew that Respondent DiMella-Deem’s

request for a “no contact” RO could not be granted if

Petitioner was afforded an opportunity to be heard and

make a record. So, they conspired to deny Petitioner

due process, tampered with public records and

embroiled Petitioner in the Second Department’s

wheels of injustice, to continue to deny him his

constitutional rights, property, money and children.

4

Procedural History

On December 18, 2018, Petitioner filed a

complaint in the Southern District of New York

pursuant to 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. §§

1983 and 1985, and the First, Second, Fourth and

Fourteenth Amendments.

On April 22, 2019, Petitioner filed a proposed

first amended complaint.

On May 2, 2019, the District Court dismissed the

original complaint sua sponte, based on the Second

Circuit’s Domestic Relations Abstention Doctrine

(DRAD). Deem v. DiMella-Deem, supra. (5a). The

District Court ordered Petitioner to show cause why

sanctions should not be imposed for filing said

complaint.

On May 31, 2019, Petitioner filed a notice of

appeal and affirmation in response to the show cause

order. To date, the District Court has not imposed

sanctions for filing said complaint.

On October 3, 2019, Petitioner filed a Reply to

Respondent

DiMella-Deem’s

Letter

Brief

in

Opposition. Deem v. DiMella-Deem, 19-1630 (2d Cir.)

(Dkt. 96). Said Reply provided in part,

By way of background, [Petitioner] filed an

action seeking divorce and joint custody of two

adopted children, now 14 and 12 years old. Ms.

DiMella-Deem answered seeking sole custody.

[Petitioner] also filed the first petition in family

court seeking a restraining order (RO) against

Ms. DiMella-Deem compelling her to refrain

from physically assaulting [Petitioner] and

masturbating in the presence of their children.

Also, [Petitioner]’s only arrest ever was the

5

result of a violation of a RO that he was unaware

of because he texted his children that he loved

them and would try to see them later that day.

The criminal charge was dismissed on default

subsequent to the filing of the underlying

complaint.

On information and belief, Ms. DiMella-Deem

suffers from untreated grave mental illness

(borderline, narcissistic and/or anti-social

personality disorders), bi-polyamorous sex

addiction (including incest and pedophilia) and

mythomania.

As a result of Ms. DiMella-Deem’s and Ms.

Eichen’s misconduct, and the below described

unconstitutional scheme, customs and practices,

[Petitioner], a fit parent whose children are not

abused or neglected, has not had any contact

with his children since June 9, 2018 at 2:00 pm.

Pursuant to 22 NYCRR § 130-1.1(a), the filing of

frivolous complaints is permitted in proceedings

filed under Family Court Act, Article 8 (family

offenses). Even fabricated allegations are

permitted, in violation of a litigant’s right to Due

Process. 22 NYCRR § 130-1.1(c)(3).

On information and belief, the New York State

Appellate Division, Second Department1has a

custom and practice of not even attempting to

The second Department contains slightly more than one-half of

the State’s population. (retrieved at

http://www.courts.

state.ny.us/courts/ad2/aboutthecourt.shtml, on May 5, 2020).

1

6

confirm the subject of an ex parte application

(Target), typically the male, for a RO is

unavailable before hearing the application, in

violation of the Target’s right to Due Process.

On information and belief, mothers file the vast

majority of applications for ex parte ROs.

On information and belief, the Second

Department [ha]s a custom and practice of

issuing ROs without requiring the petitioner to

meet statutory or constitutional standards

required for ROs.

On information and belief, the Second

Department has a custom and practice of

requiring Targets of ROs to surrender all

firearms to local law enforcement, even when

based on frivolous allegations, in violation of the

Target’s Second Amendment rights.

New York State Family Court Act, § 842-a (7)

requires courts to provide Targets a deprivation

hearing, but no later than fourteen days after

said RO is rendered.

On information and belief, the Second

Department has a custom and practice of

denying all discovery regarding ROs, in violation

of the Target’s right to Due Process.

On information and belief, the Second

Department has a custom and practice of

denying pre and post deprivation hearings for

ROs, in violation of the Target’s rights to

7

Parental Relations, Free Exercise of Religion,

Second Amendment, Due Process and Equal

Protection.

On information and belief, the Second

Department has a custom and practice of

invoking 18 U.S.C. §§ 2265 and 2266, compelling

all State, tribal and territorial courts to give “full

faith and credit” to ROs rendered within the

Second Department because said Targets were

given due process, when in fact they were not, in

violation of the Target’s right to Due Process.

On information and belief, the Second

Department has a custom and practice of

appointing attorneys for the child(ren) (AFC) in

all family offense and contested matrimonial

proceedings, even when the children are not

abused or neglected, over fit parents’ objections,

in violation of the Target’s right to Parental

Relations.

On information and belief, AFCs have a custom

and practice of raising the relative voice of one

parent over the other, typically the female, in

violation of the Target’s, right to Free Speech.

On information and belief, the Second

Department has a custom and practice of

denying all custodial discovery to all litigants,

including fit parents, in contested custody

disputes, in violation of their rights to Free

Speech, Due Process and Equal Protection. No

such custom and practice exists in the Third or

Fourth Departments.

8

On information and belief, the Second

Department has a custom and practice of

appointing forensic evaluators (FE) to control

discovery and determine what recommendations

and evidence will be obtained, considered or

presented to the court, in violation of fit parents’

rights to Parental Relations, Free Speech, Due

Process and Equal Protection. No such custom

and practice exists in the Third or Fourth

Departments.

On information and belief, the Second

Department has a custom and practice of

compelling fit parents with sufficient means, as

determined by the matrimonial courts without

regard to statutory requirements, to pay the

legal fees and expenses of the [AFCs and] FEs,

in violation of fit parents’ rights to Free Speech

and under the Takings Clause. No such custom

and practice exists in the Third and/or Fourth

Departments.

In N.Y.S. Bd. of Elections v. Lopez Torres, the

U.S. Supreme Court overruled this Court’s

affirmance that New York State’s system of

selecting judges was unconstitutional because

selections are made by “political bosses.” 522

U.S. 196, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008).

Justice Stevens, in his concurring opinion,

quoted Justice Marshall’s oft repeated statement

that “The Constitution does not prohibit

legislatures from enacting stupid laws.”

[]

On information and belief, the vast majority of

court appointed AFCs and FEs are closely

9

associated with or in fact are “political bosses” or

“political elites,” they use their court appointed

positions to execute “political hits,” and are

permitted to ignore their legal obligations to the

children by judges they either selected for the

bench or can prevent their re-selection to the

bench.

On information and belief, the Second

Department’s elaborate web of customs and

practices is at base an elaborate scheme to

separate fit parents from their money, [] by trick

and deception, to the benefit of all involved

except for targeted fit parents and their unabused and un-neglected children.

On information and belief, litigants seeking ex

parte ROs can purchase through their attorneys

undue or political influence with court appointed

AFCs, FEs and/or court personnel within the

Second Department.

On information and belief, the Second

Department’s elaborate web of customs and

practices uses judicial immunity to shield judges

that enforce the aforementioned unconstitutional

customs and practices from 42 U.S.C. § 1983

claims, because there is no material distinction in

the caselaw between immunity for judges

appointed pursuant to federal standards, or

nearly equivalent thereto, as opposed to judges

selected pursuant to “stupid” laws such as New

York State’s that permit, if not encourage,

ongoing political influence in rendering decisions

regarding fundamental constitutional rights.

10

On information and belief, New York State’s

system of selecting judges is unconstitutional

because it permits, if not encourages or is

designed to create, unconstitutional customs and

practices.

On information and belief, New York State’s

system of disciplining judges is unconstitutional

because it does not discourage judges from

enforcing

unconstitutional

customs

and

practices.

On information and belief, New York State’s

system of selecting judges is unconstitutional

because it has permitted the creation of a “super

legislature” with the authority to enact and

enforce unconstitutional customs and practices

and usurp the powers of the rightfully elected

state representatives.

On information and belief, the New York State

Court of Appeals has knowledge of the

aforementioned

unconstitutional

scheme,

customs and practices, but is unable or unwilling

to intervene.

On information and belief, the New York State

Legislature

has

knowledge

of

the

aforementioned

unconstitutional

scheme,

customs and practices, but is unable or unwilling

to intervene.

On information and belief, the matrimonial bar

within the Second Department is aware of the

aforementioned

unconstitutional

scheme,

11

customs and practices, but has been silenced for

fear of retaliation and being blackballed by the

judges that enforce said unconstitutional

customs and practices, or AFCs and FEs that

may retaliate against their other clients.

On information and belief, the aforementioned

unconstitutional scheme, customs and practices

overwhelmingly impacts fit fathers greater than

fit mothers, of children that are not abused or

neglected.

Assuming, arguendo, [Petitioner] is mistaken,

the Second Department does not have the

aforementioned customs and practices, he has

suffered

the

aforementioned

misconduct

individually.

On information and belief, the deprivation of

[Petitioner]’s aforementioned constitutional

rights was a “political hit” bought and paid for

by Ms. DiMella-Deem with the assistance of her

prior counsel, Robin D. Carton, Esq., Carton &

Rosoff PC, White Plains, New York.

In light of the aforementioned, [Petitioner] is left

with no other recourse but to seek federal court

intervention in the instant and other matters for

the protection of his rights and the health and

well-being of his two young children who are

already dealing with issues of parental

abandonment.

On February 26, 2020, Petitioner also submitted

excerpts from a transcript of the underlying family

12

offense proceedings. Deem v. DiMella-Deem, 19-1630

(2d Cir.), Plaintiff-Appellant’s Supplemental Appendix,

A-052-053 (Dkt. 140, pp. 4-5).

The excerpts provide,

Ms. Eichen: [Petitioner]

asked

Judge

Greenwald for discovery, which is not

allowed in the Second Department orders

of protection.

[]

Mr. Deem: Your Honor, before we proceed, I

just want the record to be clear that

counsel stated, if I understood her

correctly, that there is no discovery

allowed for orders of protection in the

Second Department. Is that accurate?

The family court refused to answer Petitioner’s

question.

Petitioner also submitted a letter drafted and

filed by Respondent Eichen in Petitioner’s matrimonial

action that provided, in part, “A deposition of [a third

party] is not warranted nor allowed in the Second

Department.” Deem v. DiMella-Deem, 19-1630 (2d

Cir.), Plaintiff-Appellant’s Supplemental Appendix, A055 (Dkt. 140, p. 7).

On April 9, 2020, the Second Circuit affirmed in a

summary order and held “[Petitioner]’s allegations in

this case are nearly identical to the allegations we

considered in his prior appeal.” (3a) Costs were

awarded to Respondents.

13

Facts

On July 13, 2018, Judge Gordon-Oliver, J.F.C., a

respondent in Deem v. DiMella-Deem, et al., No. 191111 (U.S.), recused herself sua sponte, then adjourned

the underlying Article 8 family offense proceedings and

extended the RO denying Petitioner and his children all

contact with each other until September 13, 2018. The

RO also required Petitioner to surrender his firearms.

His statutory right to a post-deprivation hearing within

fourteen days from the date the RO was entered,

F.C.A., § 842-a (7), was summarily denied. To date,

Petitioner has never received a post-deprivation

hearing for any RO.

On September 13, 2018, Hal B. Greenwald,

J.F.C., held a conference in the underlying family

offense proceedings. Petitioner pressed his right to a

post-deprivation hearing. Judge Greenwald refused to

hear the matters until an attorney for the children

(AFC) was appointed for each of Petitioner’s two

children, over his objections. The matter was adjourned

and RO extended in court to November 9, 2018.

On November 9, 2018, said conference was held.

Petitioner continued to press his right to a postdeprivation hearing and objected to the appointment of

AFCs, particularly those that were appointed.2 Judge

One AFC was precluded from accepting “private pay” matters,

like Respondent Miller in Deem v. DiMella-Deem, 19-1111 (U.S.),

because his wife is an employee of the Westchester County Family

Court. The AFC’s wife also happens to be a former supervisor of

Petitioner that was demoted, on information and belief, for

subjecting Petitioner to a hostile work environment, in lieu of

being terminated. The other AFC, on information and belief, is a

close friend and political ally of another former female supervisor

of Petitioner, and co-defendant in a civil rights lawsuit filed by

2

14

Greenwald “unappointed” both AFCs as a direct result

of Petitioner’s opposition during the conference.

Petitioner also opposed the imposition of any RO,

especially a “no contact” RO. During the conference

Respondents DiMella-Deem and Eichen never raised

the issue of extending the existing RO or entering a

new RO. Judge Greenwald scheduled a fact-finding

hearing for the underlying petitions and adjourned the

conference. Petitioner left the courtroom believing he

prevailed in his argument that no RO was warranted.

Respondents DiMella-Deem and Eichen waited

for Petitioner to exit the courtroom, then requested an

extension of the existing “no contact” RO. Judge

Greenwald granted the request ex parte. Petitioner was

neither informed of nor served with the new RO. The

RO fraudulently provided that Petitioner “was advised

in Court of issuance and contents of Order” and “Order

personally served in Court upon [Petitioner].” See, RO

dated November 9, 2018.

The next morning, November 10, 2018, believing

no RO was in place, Petitioner texted his children that

he loved them, missed them and would try to see them

later that day. He presented to the local police

department and requested an escort to the marital

home. A police officer informed Petitioner that

Respondent DiMella-Deem had just filed a complaint

against him for violating the “no contact” RO signed the

previous day. The officer showed Petitioner the

fraudulent RO filed by Respondent DiMella-Deem and

arrested Petitioner.

Petitioner contacted the chambers of Judge

Greenwald and asked that the RO be corrected to

Petitioner. See, Deem v. Indelicato, et al., 7:09-cv-1842 (SCR)

(voluntarily dismissed).

15

accurately reflect Petitioner was not advised in court of

the issuance and contents of the RO, and the RO was

not personally served upon him in court. Judge

Greenwald’s written response provided, “your request

for a corrected [restraining] order is denied.” The sole

criminal charge was dismissed on default after several

court appearances and review of the transcript of the

family court conference on November 9, 2018. Said

dismissal was prolonged due to Judge Greenwald’s

refusal to correct the RO.

From June 13, 2018 through January 8, 2019, no

less than three ROs were issued against Petitioner.

Each RO fraudulently invoked 18 U.S.C. §§ 2265 and

2266.

Each

RO

was

transmitted

to

https:www.ejustice.ny.gov and the National Instant

Criminal Background Check System. The RO

compelled all State, tribal or territorial courts to give

full faith and credit to the referenced ROs because

Petitioner “has or will be afforded reasonable notice

and opportunity to be heard in accordance with state

law sufficient to protect his rights.” 18 U.S.C. § 2265. In

fact, Petitioner was denied notice and opportunity to be

heard, repeatedly.

Petitioner is without question a fit father. His

children love him and want to have a relationship with

him. However, they have been denied all contact with

each other since June 9, 2018, at 2:00 p.m., after the last

supervised visit. Petitioner has “no home, no money

[and] no family,” just as Respondent DiMella-Deem

said would happen if he did not agree to take $10,000 as

his share of the marital estate.

16

REASONS FOR GRANTING THE PETITION

I.

LOWER FEDERAL COURTS MAY NOT

REFUSE TO EXERCISE JURISDICTION

OVER FEDERAL QUESTION CLAIMS IN

THE ABSENCE OF A WARRANT TO DO SO

FROM CONGRESS OR THIS HONORABLE

COURT.

In Dennis v. Sparks, this Honorable Court held,

“[p]rivate parties who corruptly conspire with a judge

in connection with such conduct are thus acting under

color of law within the meaning of § 1983.” 449 U.S. 24,

29, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). The holding is

categorical. No exception is made for those who

conspire with family court judges. Thus, § 1983

“provid[es] a remedy against those private persons who

participate in subverting the judicial process [in family

court] and in so doing inflict injury on other persons.”

Dennis v. Sparks, 449 U.S. at 32.

In Cohens v. Virginia, Chief Justice Marshall

famously cautioned, “It is most true that this

Court will not take Jurisdiction if it should not:

but it is equally true, that it must take

jurisdiction if it should. . . . We have no more

right to decline the exercise of jurisdiction which

is given, than to usurp that which is not given.

Among longstanding limitations on federal

jurisdiction otherwise properly exercised are the

so-called “domestic relations” and “probate”

exceptions. Neither is compelled by the text of

the Constitution or federal statute. Both are

judicially created doctrines stemming in large

measure from misty understandings of English

17

legal theory. In the years following Marshall’s

1821 pronouncement, courts have sometimes lost

sight of his admonition and have rendered

decisions expansively interpreting the two

exceptions. In Ankenbrandt v. Richards, 504

U.S. 689 (1992), this Court reigned in the

“domestic relations exception.”

Marshall v. Marshall, 547 U.S. 293, 298-299, 126 S.Ct.

1735, 164 L.Ed.2d 480 (2006).

Here, as in Ankenbrandt, “the District Court

improperly refrained from exercising jurisdiction over

[Petitioner’s] claim[s].” Marshall v. Marshall, 547 U.S.

at 305 (emphasis added). Here, as in Ankenbrandt,

there is “no Article III impediment to federal-court

jurisdiction in domestic relations cases,” Id., at 306, or

cases “on the verge of being matrimonial in nature.”

See, Id. Here, the Second Circuit, like the Ninth Circuit

in Marshall, “had no warrant from Congress, or from

decisions of this Court, for its sweeping [rule that

denies federal question plaintiffs a federal forum].”

Marshall v. Marshall, 547 U.S. at 299-300. A federal

forum is guaranteed to Petitioner. See, e.g. Dennis v.

Sparks, 449 U.S. at 32; Knick v. Township of Scott,

Pennsylvania, 588 U.S. __, 139 S.Ct. 2162, 2167, 204

L.Ed.2d 558 (2019) (“[T]he guarantee of a federal forum

rings hollow for [federal question] plaintiffs, who are

forced to litigate their claims in state court.”).

Finally, Petitioner sought sixteen forms of

equitable relief; fourteen declaratory judgments and

two injunctions. “[E]quitable jurisdiction is not to be

denied or limited in the absence of clear and valid

legislative command.” Porter v. Warner Holding Co.,

328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946).

18

The Second Circuit’s DRAD does not rely on any

legislative command; clear, valid or otherwise. “And

since the public interest is involved in a proceeding of

this nature, those equitable powers assume an even

broader and more flexible character than when only a

private controversy is at stake.” Porter v. Warner

Holding Co., 328 U.S. at 398.

The decision below should be reversed.

II.

THE SECOND CIRCUIT’S DOMESTIC

RELATIONS ABSTENTION DOCTRINE IS

UNCONSTITUTIONALLY VAGUE.

It is a basic principle of due process that an

enactment [or judicially created doctrine] is void

for vagueness if its prohibitions are not clearly

defined. Vague laws [and judicially crafted rules]

offend several important values. [W]e insist that

laws [and court rules] give the person of

ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act

accordingly.

See, Grayned v. City of Rockford, 408 U.S. 104, 108-109,

92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The Second

Circuit’s DRAD is unconstitutionally vague for myriad

reasons.

First, it fails to “give the person of ordinary

intelligence a reasonable opportunity to know what is

prohibited.” Grayned v. City of Rockford, 408 U.S. at

108. For example, the Second Circuit held, “Our

decision today is consistent with our unbroken practice

of citing American Airlines when upholding, in

unpublished decisions, the dismissal of both federal

question and diversity cases involving domestic

19

relations disputes.” Deem v. DiMella-Deem, 941 F.3d

618, 625 (fn. 1) (2d Cir. 2019). That decision is published.

So, why did the Second Circuit affirm?

Also, the Second Circuit fails to explain the

factors in determining whether a decision will be

published or not. As such, federal question plaintiffs are

unable to determine if they are willing to forego filing

papers in federal court or risk the imposition of

associated costs should their claims be dismissed, as in

the instant matter.

Further, the Second Circuit has not clearly

explained what it means by claims that are “on the

verge of being matrimonial in nature.” (4a) In Schottel

v. Kutyba, the Second Circuit distinguished

Ankenbrandt because “[Ankenbrandt’s] tort claims

were distinct from the domestic relationship.” 06-1577cv (2d Cir. Feb. 2, 2009). Therefore, the Court reasoned,

the District Court was correct in not abstaining. Id.

However, in the instant matter, the Second

Circuit affirmed the District Court’s abstention even

though Petitioner pleaded violations of his rights under

the First, Second, Ninth and Fourteenth Amendments.

Petitioner’s claims, like Ankenbrandt’s claims, are

distinct from a domestic relationship. Indeed,

Petitioner does not even have, nor has he ever had, a

domestic relationship with Respondent Eichen.

Petitioner’s claims involve material fraud by a

judge and Petitioner’s legal opponent, on every tribunal

within the jurisdiction of this nation, and attendant

damages. Those allegations are far removed from

divorce, alimony or custody. Yet, they apparently fall

within the Second Circuit’s phrase “on the verge of

being matrimonial in nature.”

If the instant claims fall within the definition of

that term, then any claim can fall within the definition

20

of that term, including actions that challenge 42 U.S.C.

§ 603, as written or as applied by the Office of Child

Support Enforcement, the Administration for Children

and Families, the U.S. Department of Health and

Human Services or their partners. As such, the Second

Circuit’s judicially crafted doctrine is so egregiously

vague that it also violates the separation of powers

doctrine. See, Sessions v. Dimaya, 584 U.S. ___, 138

S.Ct. 1204, 1227, 200 L.Ed.2d 549 (2018) (Gorsuch, J.,

concurring in part and concurring in the judgment).

The decision below should be reversed.

III.

PETITIONER DEMONSTRATED

OBSTACLES TO THE FULL AND FAIR

DETERMINATION OF IS FEDERAL

QUESTION CLAIMS IN STATE COURT

THAT PREVENT THE OPERATION OF THE

SECOND CIRCUIT’S DOMESTIC

RELATIONS ABSTENTION DOCTRINE.

In Monroe v. Pape, this Court cited the debates

of the Civil Rights Act of 1871. 365 U.S. 167, 81 S.Ct.

473, 5 L.Ed.2d 492 (1961), overruled in part on other

grnds, Monell v. New York City Dept. of Soc. Srvcs.,

436 U.S. 658, 98 S.Ct. 20118, 56 L.Ed.2d 611 (1978). The

debates detailed the “lawless conditions existing [at the

time].” Monroe v. Pape, 365 U.S. at 175. For example,

Mr. Lowe of Kansas stated,

[W]hile [judicial] whippings and lynchings and

banishment have been visited upon unoffending

American citizens[, including fathers and their

children], the local administrations [and family

courts] have been found inadequate or unwilling

to apply the proper corrective. Combinations,

21

darker than the night that hides them,

conspiracies, wicked as the worst of felons could

devise, have gone unwhipped of justice.

Immunity is given to crime [and fabricated

allegations], and the [fraudulent] records of the

public tribunals are searched in vain for any

evidence of effective redress.

Monroe v. Pape, 365 U.S. at 175.

Senator Osborn of Florida stated,

That the State courts [] have been unable to

enforce the criminal [or civil] laws [] or to

suppress the disorders existing.

Monroe v. Pape, 365 U.S. at 176.

After considering arguments of other debaters

the Monroe Court held,

The debates were long and extensive. It is

abundantly clear that one reason the legislation

was passed was to afford a federal right in

federal courts because, by reason of prejudice,

passion, neglect, intolerance or otherwise, state

laws might not be enforced and the claims of

citizens to the enjoyment of rights, privileges,

and immunities guaranteed by the Fourteenth

Amendment might be denied by the state

agencies.

Monroe v. Pape, 365 U.S. at 180 (emphasis added).

In the instant matter, Petitioner made equally

compelling arguments why he cannot obtain a full and

fair determination of his federal claims in state court.

For example, Petitioner described in detail the specific

22

constitutional shortcomings of state courts, with

references to the corresponding constitutional

provisions that were violated. See, (6a-14a); Reply to

Respondent

DiMella-Deem’s

Letter

Brief

in

Opposition. Deem v. DiMella-Deem, 19-1630 (2d Cir.)

(Dkt. 96). He provided written admissions in open court

by Respondent Eichen about the unavailability of

discovery in state courts, and two judges’ failure to

rebut said admissions. See, Deem v. DiMella-Deem, 191630 (2d Cir.), Plaintiff-Appellant’s Supplemental

Appendix, A-051-055 (Dkt. 140, pp. 3-7). And, Petitioner

referenced a custom and practice of entering fraudulent

ROs. It is a matter of public record that New York

State

courts

publish

ROs

through

https:www.ejustice.ny.gov. See, N.Y.S. Division of

Criminal Justice Services, eJusticeNY Integrated

Justice Portal, Applications & Access (retrieved at

https://nysamcc.com/DocumentCenter/View/390/1-EJustice--Court-Clerk-Basic, on May 1, 2020).

Petitioner’s allegations should have been

“construed liberally, accept[ed] as true, and [] all

reasonable inferences [drawn] in [his] favor.” Chambers

v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

With all due respect to the learned courts below,

Petitioner was denied such a reading of his complaint.

Moreover, the Second Circuit held, “federal

courts may properly abstain from adjudicating [federal

question] actions in view of the greater interest and

expertise of state courts in this field.” Deem v. DiMellaDeem, 941 F.3d at 621. It is a matter of public record

that the court from which Petitioner’s claims arose is a

court of limited jurisdiction. Compare, N.Y. Const., Art.

VI, § 7(a) (“The supreme court shall have general

jurisdiction”), with, § 13(b), (c) (enumerating the classes

of actions, proceedings and matters over which the

23

family court has jurisdiction, and omitting federal civil

rights claims). The family court cannot preside over

federal civil rights claims. Therefore, the family court

does not have any interest or expertise, let alone

“greater interest or expertise” in Petitioner’s federal

civil rights claims.

In light of the above, Petitioner demonstrated

insurmountable “obstacle[s] to the full and fair

determination in state courts [of federal question

claims].” Deem v. DiMella-Deem, supra, (3a). He was

wrongfully denied his right to a federal forum for his

federal question claims “to prevent even the probability

of unfairness.” Gutierrez de Martinez v. Lamagno, 515

U.S. 417, 428, 115 S.Ct. 2227, 132 L.Ed.2d 275 (1995).

CONCLUSION

For the foregoing reasons Petitioner respectfully

requests that this Honorable Court grant this Petition

for Writ of Certiorari.

Respectfully submitted,

MICHAEL A. DEEM

Pro Se

26 Keystone Road

Yonkers, NY 10710

914-482-3867