Petition for Writ of Certiorari — In Re Lionel McCray, Petitioner

7411P

r

i:

t

~i /—\ nr n

H

* \ M

n

>

vrJ '**

i 4

'•o.

IN THE

SUPREME COURT OF THE UNITED STATES

f /■

—_ r \K

- Tv

In re LIONEL McCRAY - PETITIONER

ON PETITION FOR WRIT OF MANDAMUS TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AND Tb

THE HONORABLE CIRCUIT JUDGE AMALYA REARSE,

CIRCUIT JUDGE

BARRINGTON PARKER, CIRCUIT JUDGE RICHARD SULLIVAN AND CIRCUIT

CLERK CATHERINE O'HAGAN WOLFE.

Lionel McCray - Petitioner Pro se

Auburn Correctional Facility

P.O.Box 618, Auburn, New York 13024

p

hi:

t'

QUESTION(S) PRESENTED

(1) Aether Mandamus should issue to the United States Court

of Appeals for the Second Circuit compelling the Chief Clerk

of that Court to issue a Writ of Sequestration pursuant to

F.R.C.P.

70(c)

against

the

Respondents,

compelling

the

Second Circuit Court to enter a Finding of Contempt pursuant

to F.R.C.P. 70(e) against the respondents for acting in bad

faith,

or

in

the

alternative,

render

a decision

in

the

McCray v. Lee proceeding ?

The Petitioner herein respectfully pray that, pursuant to 28

U.S.C.A. 1651(a), the All Writ Act, a Writ of Mandamus be

issued to compel the United States Court of appeals for the

Second Circuit, the Honorable Circuit Judge Amalya Kearse,

Circuit

Judge

Barrington

Parker,

Circuit

Judge

Richard

Sullivan and Circuit Chief Clerk Catherine O'Hagan Wolfe, to

issue a Writ of Sequestration Pursuant to F.R.C.P. 70(c) and

enter a decision in the McCray v. Lee Contempt proceeding

Pursuant to F.R.C.P. 70(e),

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Lionel McCray - Petitioner

Superintendent William Lee - Respondent - Defendant

Watch Commander Lt. Plimey - Respondent - Defendant

Sergeant Kutz - Respondent - Defendant

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Anderson v. Coughlin, 757 F.2d 33(2d Cir. 1985)

Banker life & Cas. Go. v. Holland, 349 U.S. 379(1953)

Faubus v. U.S., 254 F.2d 797(8th Cir. 1958)

Frew v. Hawkins, 540 U.S. 431(2004)

Hutto v. Finney, 437 U.S. 678(1978)

Kerr v. Dist. Court of Califomi, 426 U.S. 403(1976)

La Buy v. Howes leather Co., 352 U.S. 249(1957)

Kendall v. Stokes, 37 U.S. 524(1838)

Knickerbocker Ins. Co. of Chicago v. Comstock, 83 U.S. 258(1872)

Mallard v. Dist. Oort of Iowa, 490 U.S. 296(1989)

Marbury v. Madison, 5 U.S. 137(1803)

McCray v. Lee, 2018 WL 1620976(S.D.N.Y.)

Mitchell. v_. G.T.Grant Co., 416 U.S. 600(1974)

Morrison v. California, 291 U.S. 82(1934)

Salazar v. Buono, 559 U.S. 700(2010)

Taggart v. Lorenzen, 139 S.Ct. 1795(2019)

Ihermtron Products Inc. v. Hermansdorfer, 423 U.S. 336(1976)

Wagner v. Wamasch, 156 Tex. 334(1956)

Will v. Calvert Fire Ins. Co., 437 U.S. 655(1978)

Will v. U.S., 389 U.S. 90(1967)

STATUTES AND RULES

28 U.S.C.

28 U.S.C.

28 U.S.C.

42 U.S.C.

1291

1292(a)

1651(a)

1331(a)

42 U.S.C. 1983

F.R.A.P. 45(c)

F.R.C.P. 70(c) and (e)

U.S. Supreme Court Rule 20

New York State C.P.L.R. 6201(5)

~?\J

1

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

27

CONCLUSION

INDEX TO APPENDICES

APPENDIX A Anderson

v.

Coughlin

consent

decrees,

Second

Circuit's

decision in Anderson v. Coughlin, 757 F.2d 33(2d Cir. 1985).

APPENDIX B Petitioner's

Motion to Enforce the Anderson v. Coughlin

Consent decrees and Finding of Contempt with Affidavits

APPENDIX C Petitioner's Application for a Writ of Sequestration and

Petitioner's Affidavit in support.

APPENDIX D Respondent's Memorandum of law in Opposition to Motion to

Enforce, Contempt and Sequestration, Petitioner's Reply .

APPENDIX E Second Circuit Order dated May 30th, 2019. Court Order dated

June 7th, 2019. Attorney K. King's letter dated June 12th 2019

APPENDIX F

Second Circuit Order dated August 8th, 2019. Court Order

dated October 24th, 2019. Motion for Judicial Notice,

Respondents response, Petitioner's reply.

APPENDIX G Second Circuit Court Docket Sheet for the McCray v. Lee

appeal and copy of decision for Judicial Misconduct Gdmplaint

dated December 3rd, 2019.

I

f

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF MANDAMUS '

OPINIONS BELOW

The

Anderson

v.

Coughlin

action

was

commenced

by

several

prisoners confined in several New York State presons as a Civil

Rights Class action litigation. The Anderson et al. Class brought

suit

against

defendants

Coughlin

et

al.

regarding

inadequate

access to exercise, among other Constitutional violations. Expert

testimony was taken before the Southern

York on January 16th,

consent

Decrees

District Court of New

1984, entered two partial final Judgment

against

the

defendants,

that

defendants

keep outdoor exercise areas

free of accumulations

snow.

Court

The Southern District

clear that defendants shall,

Anderson

v.

Coughlin

of

shall

Ice and

in the consent Decrees made

throughout the stipulation of the

consent

Decrees,

mean

those

individuals

named as defendants in the Anderson v. Coughlin action as well as

their successors, agents, employees, assigns and those acting in

concert with them, The District Court then granted the defendants

motion for summary Judgment on the unresolved issues of prisoners

use

of

indoor

exercise

areas

and

exercise

equipments.

The

Anderson et al. Class appealed the summary Judgment. The Second

Circuit

Court

Anderson

v.

of

Appeals

Coughlin,

757

affirmed

F.2d 33(2d

the

summary

Cir.

1985).

Judgment

The

in

Second

r

1

/

Circuit Court of Appeals interpreted the Anderson v. Coughlin consent

Decrees by stating that outdoor exercise areas must be kept clear of

snow and ice, and that prisoners were not entitled to indoor exercise

areas nor exercise equipments,

see Anderson v. Coughlin,

757 F.2d

33(2d Cir. 1985)

Petitioner filed his 1983 Civil Rights Complaint in the Southern

District Court of New York on March 7th, 2016. On December 6th, 2016,

Petitioner

filed a motion

District

On

Court.

May

for

24th,

dismissed the Petitioner's

Injunctive

relief

2017,

Southern

the

in

the

Southern

District

Court

1983 Complaint with Orders to file an

amended Complaint in 30 days. On June 14th, 2017, Petitioner filed

his second amended Complaint, which was dismissed with prejudice by

the district court on March 29th, 2018. see McCray v. Lee, 2018 WL

162097b(S.D.N.Y.)

On April 16th, 2018, Petitioner timely filed a notice of Appeal

to

the

Second Circuit Court of Appeals.

On December 11th,

2018,

Petitioner filed his primary appellate brief. On January 30th, 2019

Petitioner commenced a contempt proceeding by

filing a motion to

enforce the Anderson v. Coughlin enforceable consent decrees that was

entered in the Petitioners favor and a finding of contempt against

the defendants of the Anderson v. Coughlin Class action. On February

2nd, 2019, Circuit Judge Droney Ordered the defendants to respond to

Petitioner's motion to enforce and finding of contempt. On February

20th,

2019,

Petitioner

filed

an

application

for

a

Writ

of

Sequestration of the defendants Green Haven correctional facility. On

February

27th,

2019,

Circuit

Judge

again

ordered

defendants

to

respond to Petitioner's motion to enforce, finding of contempt and

2

\ A ./

/

application

for

a

Writ

defendants

filed

proceeding.

On March

their

of

Sequestration.

On

March

response opposition

to

contempt

12th,

2019,

defendants

filed

7th,

2019,

and

their

Writ

response

appellate brief. On March 19th, 2019, Petitioner filed his reply to

defendants opposition to contempt and Writ proceeding. On April 3rd,

2019,

Petitioner

filed

his

reply

appellate

brief,

closing

the

briefing schedule. Since the submission of the contempt and Writ of

Sequestration proceeding in March of 2019, there has been no decision

on the contempt proceeding nor has the Circuit clerk issued a Writ of

Sequestration

pursuant

to

F.R.C.P.

70(c).

A

contempt

proceeding

properly prosecuted and an application for Writ of Sequestration has

languished without been addressed in the Second Circuit Court of

Appeals for more than eight months. The inactions of the Circuit

Court and the Circuit clerk has effectively precluded this Court f r Am

A.

Lit

exercising it's appellate Jurisdiction.

Circuit Court in an abuse of discretion not located within the

range of permissable federal rules, usurped power and began entering

orders

which

indefinitely

ignored

the

issuance

of

a

Writ

of

Sequestration pursuant to F.R.C.P. 70(c) or the enforcement of the

Anderson v. Coughlin consent decrees and finding of contempt against

the defendants. The first such orders was entered on May 30th, 2019,

appointing counsel for the Petitioner to reopen the briefing schedule

with

instructions

contempt

proceeding

to

brief

and

two

issues

Petitioner's

already

briefs.

addressed

Petitioner

at

the

rejected

panel appointed counsel and filed an objection to a reopening of the

briefing

schedule.

Petitioner

also

filed

a

Judicial

misconduct

Complaint against Circuit panel for their badfaith intent in entering

the May 30th, 2019, Order. On August 8th , 2019, a new Circuit panel

3

*

entered an order appointing rejected counsel as Amicus with orders to

brief the record. Circuit clerk withheld serving Petitioner with a

copy of the August gth, 2019, Court order appointing Amicus until

September 6th,

2019,

on the same day Amicus filed his brief. On

September 25th, 2019, Petitioner filed an objection to the Circuit

Court's abuse of discretion, appointment of an unethical attorney as

Amicus and Amicus brief and withholding of decision in the contempt

and Writ proceeding.

Petitioner also

filed a Judicial misconduct

Complaint against Circuit Chief Judge for allowing Circuit panel and

Circuit clerk to violate multiple codes of Judicial and professional

conduct

and

retaliating against

the Petitioner.

On October 24th,

2019, an other Circuit panel entered an order denying Petitioner's

motion for stay of proceedings and stated that panel will consider

Petitioner's motion for objection, enforcement, contempt finding and

Writ of Sequestration.

On November 14th, 2019, Petitioner filed a

motion for Judicial Notice pursuant to this Court's decision in Frew

v.

Hawkins,

540

U.Sc

431(2004),

Taggart

1795(2019) Salazar v. Buono, 559 U.S.

v.

Lorenzen,

139

S.Ct.

700(2010). On November 25th,

2019, Circuit Court entered an order proposing Oral argument for the

week of February 18th, 2020. On December 3rd, 2019, a member of the

Circuit panel (Circuit Judge Jose Cabranes) that appointed counsel

for

Petitioner

Amicus

dismissed

all

of

Petitioner's

Judicial

Misconduct Complaints in violation of Rule 19(a) of the Rules of

Judicial Misconduct Proceedings.

4

*

JURISDICTION

The Jurisdiction of this Court is invoked pursuant to 28

U.S.C.A. 1651(a) and the United States Supreme Court Rule

20.1. The Court has Jurisdiction over any decision of the

Second Circuit Court of Appeals on the McCray v. Lee appeal

pursuant to 28 U.S.C.A. 1254(a).

5

V• /

*

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves Amendment 8th to the Constitution of the United

States prohibiting Cruel and Unusual punishment :

Excessive bail shall not be required, nor excessive

fines imposed, nor Cruel and Unusual Punishments

inflicted.

made applicable to the States by Section 1 and 5 of Amendment 14 of

the Constitution of the United States :

Section 1. 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 Untied

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

the

law;

nor

deny

to

any

person

within

it

jurisdiction the equal protection of the laws.

Section

5.

The

Congress

shall

have

power

to

enforce, by appropriate legislation, the provisions

of this article.

and enforced by Title 42, Section 1983, United States code.

6

<r

STATEMENT OF THE CASE

A.

JURISDICTION OF THE COURT'S BELOW

The District Court had Jurisdiction over the McCray v. Lee 1983

Civil Rights Complaint pursuant to 42 U.S.C. 1331(a).

The Circuit Court has Jurisdiction over the McCray v. Lee appeal

pursuant to 20 U.S.C. 1291 and 1292(a), although the Second Circuit

has refused to exercise it Jurisdiction .

B. FACTS OF THE CASE

Petitioner recite only so much of the 40 years history of this

matter as is necessary for a determination of the issues presently

before this Court. Beginning in May of 1980, Prisoners at several New

York

State

prisons

brought

a

Class

action

Civil

Rights

lawsuit

against New York State prison officials alleging inadequate access to

exercise,

amoung other issues. On January 16th,

1984,

the Souther

District Court of New York's Judge Brieant, after a full hearing with

expert

witnesses,

entered

a

partial

final

Judgment

enforceable

consent decree against the defendants State prison officials, that

defendants shall keep outdoor exercise areas free of accumulations of

Ice and snow. The District Court then granted the defendants summary

Judgment Motion on the unresolved issues of indoor exercise area

usage in inclament weather and exercise equipments. The Plaintiff's

of the Anderson v. Coughlin litigation appealed the summary Judgment

to the Second Circuit Court of Appeals. The Second Circuit Court of

7

Appeals in Anderson v. Coughlin, 757 F.2d 33(2d Cir. 1905) affirmed

the District Court's decision by interpreting the consent decrees

that outdoor exercise areas must be kept clear of snow and Ice, and

that prisoner were not entitled to indoor exercise areas or exercise

equipments.

On March 7th,

2016,

Petitioner

filed

a

section

1983

Complaint against the respondents for an alleged slip and fall injury

that occurred in the Green Haven correctional facility G & H block

exercise yard on February 20th, 2014. Petitioner in his 1983Complaint

alleged

that

on

February

20th,

2014,^ at

approximately

10:10am,

Petitioner was escorted by Sergeant Kutz to the doorway of the G & H

block

exercise

yard

of

the

Green

Haven

correctional

facility.

Sergeant Kutz gave Petitioner a direct order to proceed into the

exercise yard to observe a limited one hour keeplock exercise. The

Green Haven correctional facility outdoor exercise yards is a square

prison yard with 80% grassy areas in the middle and concrete walkways

on four sides, surrounded by walls of housing units and hallways. see

Anderson v. Coughlin, 757 F.2d 33 at 34(2d Cir. 1985). Petitioner was

walking down the snow and ice covered narrow path walkway between H

block and the snow covered handball court when Petitioner tried to

avoid frozen solid sheet of ice on the walkway floor,

Petitioner

slipped on the frozen sheet of ice and fell. In an attempt to save

his face from injury, Petitioner folded himself and braced for impact

with the walkway floor. Petitioner heard a pop from his ankle area

and landed on his left shoulder and head. Petitioner in his amended

Complaint also alleged that the conditions causing his injures were

caused by the defendants custom and policy of no snow and ice removal

from the facility's exercise yards and of not installing any winter

8

\

snow and Ice removal access ways from the closed-in facility exercise

areas.

C. PROCEDURAL BACKGROUND

The

procedural

history

of

the

Petitioner's

1983

action

in

the

District Court and the Circuit Court is as follows. Petitioner filed

his

1983

Complaint

Petitioner

on

March

7th,

2016.

On

December

6th,

2016,

filed a motion for Injunctive relief with the Southern

District Court of New York. On January 4th, 2010, defendants filed a

motion

to

dismiss

Petitioner's

Petitioner

filed a

response on February 1st,

Complaint

pursuant

to

2017,

Rule

12(b),

and defendants

filed a reply on February 16th, 2017. The District Court presided by

Honorable Judge Karas entered a decision on May 24th, 2017, granting

the defendants motion to dismiss and ordering Petitioner to amend his

Complaint within 30 days.

On June 14th,

second

On August 4th,

amended

Complaint.

second motion to dismiss,

2017,

Petitioner filed his

2017,

defendants

filed a

Petitioner filed his opposition motion on

September 19th,

2017,

and defendants filed their reply on September

26th,

March

29th,

2017.

On

2018,

the District

Court

entered

it's

final decision denying and dismissing Petitioner amended Complaint

'with

prejudice,

see

McCray

v.

Lee-

2018

WL

1620976

the Second Circuit

Petitioner

filed a

timely notice of appeal

to

Court

Appeals

on

December

of

April

16th,

2018.

On

(S.D.N.Y.).

11th,

2018,

Petitioner filed his primary appellate brief to the Second Circuit

Court.

On

January

30th,

2019,

Petitioner

commenced

a

contempt

proceeding by filing a Motion to enforce the Anderson v.

Coughlin

consent decrees and a finding of contempt against the defendants of

9

v*.

J-

the Anderson v. Coughlin action. On February 20th, 2019, Petitioner

properly filed an application for Writ of Sequestration of the Green

Haven correctional facility.

their

opposition

to

On March 3rd,

Petitioner's

motion

2019,

to

defendants filed

enforce,

finding

of

contempt and Writ of Sequestration. On March 12th, 2019, defendants

filed their appellate response brief. On March 19th, 2019, Petitioner

filed his reply to the defendants opposition to motion to enforce and

finding of contempt and sequestration. On April 3rd, 2019, Petitioner

filed his reply appellate brief, closing the appellate and contempt

proceeding

briefing

proceeding

there

schedule.

has

been

Since

flo

submission

decision

of

the

contempt

regarding

the

contempt

proceeding nor has the Circuit clerk issued a Writ as authorized by

F.P.C.P. 70 (c), only orders which indefinitely defer a decision has

been entered by the Circuit Court. The first such order was on May

30th, 2019, without ruling on the contempt proceeding, Circuit Judge

G. Lynch, Circuit Judge P. Lohier and District Judge B. Cogan entered

an order appointing counsel for the Petitioner and instructed counsel

in the order to brief two issues already addressed at the contempt

and

appellate

briefings.

When

Petitioner

rejected

counsel

and

objected to a re-opehing of the briefing record on June 25th, 2019.

On August 8th, 2019, Circuit Judge J. Cabranes, Circuit Judge P. Hall

and

Circuit

Judge

D.

Chin

entered

an

order

appointing

rejected

counsel for Petitioner as Amicus with instruction to brief the record

on

behalf

of

the

Petitioner.

Circuit

clerk

never

served

the

Petitioner a copy of the August 8th, 2019, order until September 6th,

2019,

the same day Amicus file his brief in false support of the

Petitioer and without Petitioner's consent. On .September 25th, 2019,

Petitioner

filed

a

motion

to

stay

10

further

proceedings

and

an

\

t

objection to Amicus appointment and Amicus brief. On October 24th,

2019, Circuit Judge A. Kearse, Circuit Judge B. Parker and Circuit

Judge R. Sullivan entered an order denying Petitioner's motion for

stay of proceedings, On November 27th, 2019, Petitioner filed a

motion for Judicial Notice, On December 6th, 2019, defendants filed

their response to Petitioner's motion for Judicial

Notice. On

December 12th, 2019, Petitioner filed his reply to defendants

opposition to motion for Judicial Notice.

There are also included in the appendix the following papers which

are essential to an understanding of the instant petition.

11

REASONS FOR GRANTING THE PETITION

A. INTRODUCTION

Pursuant to 28 U.S.C.A.

1651(a) and the United States Supreme

Court Rule 20. Petitioner Lionel McCray now respectfully request this

Court to issue a Writ of Mandamus directing the United States Court

of Appeals for the Second Circuit, the Honorable Circuit Judge Amalya

Kearse,

Circuit

Sullivan

and

Judge

Circuit

Barrington

Chief

Parker,

Clerk

Circuit

Catherine

Judge

O'Hagan

Richard

Wolfe,

to

immediately, and within a time certain, issue a Writ of Sequestration

pursuant

to F.R.C.P.

70(c),

enter a

Contempt Finding against the

defendants for acting in bad faith pursuant to F.R.C.P. 70(e), or in

the alternative

render a decision in

the McCray v.

Lee Contempt

proceeding. Writ of Mandamus should be issued in this case because

the Petitioner can clearly and indisputably demonstrate that:

(1)

Mandamus will protect this Court's prospective appellate (Certiorari)

Jurisdiction

over

the

Second

Circuit's

decision:

(2)

The

Second

Circuit's abdication of it's responsibility to a prompt decision in a

contempt proceeding and failure of issue a Writ of Sequestration

authorized by F.R.C.P. 70(c), demonstrates exceptional circumstance

and precedent warranting the exercise of this Court's discretionary

power; and (3) Petitioner cannot obtain adequate relief elsewhere.

The Supreme Court may issue Writ of Mandamus to inferior Courts

pursuant

to 28

U.S.C.A.

1651,

the All Writs Act.

see Ke-Hdall v.

Stokes, 37U.S. 524(1838), Marbury v. Madison, 5 U.S. 137(1803). The

authority of the Court to exercise Mandamus extends to those cases

12

/

that are within it's appellate Jurisdiction. Writ may be issued in

the aid of this Court s appellate Jurisdiction) which might otherwise

be defeated; which in this case

will be a remand of the McCray

v. Lee appeal back to the District Court to terminate the Anderson v.

Coughlin consent decrees being enforced pursuant to the P.L.R.Act.

Mandamus is appropriate both to confine an inferior Court to the

lawful exercise of it's prescribed Jurisdiction and to compel the

Court to exercise its authority when it has a duty to do so. see Will

v. Calvert Fire Ins. Co., 437 U.S. 655, 661(1978). Unquestionably,

only exceptional circumstances amounting to Judicial usurpation of

power will justify the invocation of Mandamus, see Will v. U.S., 389

U.S. 90, 95(1967), Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,

382(1953). The party seeking Mandamus has the burden of showing that

the right to issuance of Writ is clear and undisputable. see Kerr v.

U.S.

Dist.

Court for Northern Dist.

of California,

426 U.S.

394,

403(1976).

This

Court has consistently recognized that Mandamus remains

appropriate when the Court has clearly abused its discretion. see La

Buy v. Howes Leather Company,

Dist.

Court

for

Southern

352 U.S. 249(1957), Mallard v. U.S.

Dist.

of

Iowa,

490

U.S.

296(1989).

A

determination regarding how long a decision may be delayed is subject

to review for abuse of discretion. see Kendall v. Stokes, 37 U.S.

524, 622(1838)

Mandamus may be used only when the party requesting the Writ has

no other adequate remedy, see Kerr v. U.S. Dist. Court for Northern

Dist. of California, 426 U.S.

394(1976).

It may not be used as a

substitute for appeal. The Petitioner meet each of these criteria of

issuance

of

a

Writ

of

Mandamus

13

to

the

Second

Circuit

Court

of

Appeals. The default by the Second Circuit Court and Clerk in its

duty to issue a Writ of Sequestration authorized by law and decide

the McCray v.

Lee contempt proceeding is exceptional and merits

Mandamus relief. This Court offers the only available forum for

redress of this abuse of discretion by the Second Circuit Clerk and

Court, see kendall v. Stokes, 37 U.S. 524, 622(1838).

B. ISSUANCE OF A MANDATE WILL AID THIS COURT IN THE EXERCISE OF ITS

APPELLATE JURISDICTION.

In Will v. Calvert Fire Ins Co., 437 U.S. 655(1978), this Court

expressly recognized it's authority to issue a Writ of Mandamus to

compel an inferior Court to decide a case. Also see Knickerbocker

Ins.

Co.

Thermtron

of

Chicago

products,

v.

Comstock,

Inc.

v.

83

U.S.

258,

Hermansdorfer,

423

270(1872)

U.S.

and

336(1976).

Until the Second Circuit Clerk issues a Writ of Sequestration and

the Second Circuit Court renders a decision in the McCray v. Lee

contempt proceeding, this Court is deprived of the opportunity to

exercise

its

power

to

review

the

McCray

v.

Lee

case

by

way

Certiorari. The substance of the McCray v. Lee contempt proceeding

lies unattended before the Second Circuit, offering neither party

the

opportunity

for a final decision and final review by

this

Court. No order entered by the Second Circuit to date has been a

final decision or Judgment capable of review by way of Certiorari.

Petitioner has objected to the Second Circuit's persistent, without

reason

refusal

to

issue

F.R.C.P.

70(c),

and

to

a

Writ

of

Sequestration

enter a decision

in

pursuant

to

the McCray v.

Lee

contempt proceeding and only a directive from this Court to the

Second Circuit Clerk that a Writ be issued forthwith and that said

14

-f

contempt proceeding be decide within a certain, will allow this

Court to exercise it's review powers in a timely and meaningful

fashion.

C.

THE

MCCRAY

V.

LEE

CONTEMPT

EXCEPTIONAL

AND

PRECEDENT

AND

WRIT

CIRCUMSTANCE

PROCEEDING

WHICH

PRESENTS

WARRANTS

THE

ISSUANCE OF A MANDATE DIRECTING THE SECOND CIRCUIT CLERK TO

ISSUE A WRIT OF

SEQUESTATION AND THE COURT TO DECIDE

THE

CONTEMPT PROCEEDING IMMEDIATELY.

1)

The

Second

Sequestration

Circuit’s

pursuant

to

Clerk

refusal

F.R.C.P.

70(c)

to

issue

a

Writ

and

New

York

of

State

C.P.L.R. 6201(5) after a contempt and Writ hearing demonstrates the

petitioner's clear and indisputable right to relief.

Sequestration is a proceeding In Rem. An In Rem proceeding is

based

on

a

Court's

power

over

property

within

its

territory

including the power to seize and hold it. In Rem proceedings takes

no cognizance of an owner or person with a beneficial interest. Any

property of every description anywhere within the Jurisdiction of

the

Court

is

generally

obligation pursuant

subject

to

Sequestration

to

satisfy

an

to F.R.C.P.

70.

State law also governs the

availability and manner of applying for Sequestration, see New York

State C.P.L.R. 6201(5). Since Sequestration is simply a procedural

mechanism for enforcing an underlying obligation, issuance of Writ

has

no

effect on

legal

title to property but merely transfers

possession pending compliance with the underlying obligation. This

Court in Mitchell v. W.T. Grant Co., 416 U.S. 600(1974) established

the

necessity

for

due

process

15

safeguards

before

a

Writ

of

Sequestration

may

issue.

Petitioner

here

commenced

a

contempt

proceeding to provide the defendants with the necessary due process

notice and an opportunity to be heard before a Judicial officer to

satisfy due process and obtain Quasi In Rem Jurisdiction over the

defendants property. At the contempt and Writ proceeding Petitioner

established

facts

sufficient

federal law.

It was the legal duty of the Second Circuit Clerk

to

constitute

an

offence

against

pursuant to F.R.C.P. 70(c) to issue Writ, and upon failure to act,

it is proper to compel her to do so by Mandamus.

On January 30th, 2019, Petitioner filed a motion to enforce

the Anderson v.

Coughlin enforceable consent decrees against the

defendants pursuant to the All Writs Act, F.R.C.P. 70 and 71, and a

motion

for

a

finding

of

contempt

against

the

defendants.

On

February 20th, 2019, Petitioner filed an application for a Writ of

Sequestration of the defendants property Green Haven correctional

facility

and

enforce,

finding

Sequestration,

defendants

affidavits

of

in

support,

contempt

Petitioner

Superintendents

and

In

application

established

of

the

Petitioner's

that

of

Anderson v.

for

the

motion

to

Writ

of

fifteen

Coughlin consent

decrees, only three have taken the objectively reasonable effort to

keep their facility outdoor exercise areas clear of snow and ice

during the winter months, by paving over entire outdoor exercise

areas and creating egress to allow snow plow machinery to enter the

outdoor exercise areas and remove the winter accumulations of piles

of snow and ice from the regularly used facility exercise yards.

Petitioner also established that paving facility outdoor exercise

areas

had

a

dial

purpose

of

preventing

16

inmate

prisoners

from

digging holes in the grassy areas of the exercise areas and burying

weapons

and

drugs

of

which

the

defendants

at

Green

Haven

Correctional facility had knowledge of. see Affidavit in support of

Writ of Sequestration. On February 27th, 2019, Circuit Judge Dowrny

ordered

the

defendants

to

respond

to

Petitioners

motion

and

application for Writ. On March 7th, 2019, defendants filed their

response

to

Petitioner's

motion

and

application

for

Writ

of

Sequestration.

In the defendants response, defendants raised two

arguments

that

Petitioner

lacked

Coughlin

consent

decrees

Anderson

(1)

v.

standing

to

that

entered

was

enforce

in

the

the

Petitioner's favor. see F.R.C.P. 71 and this Court's decision in

Salazar v. Buono, 559 U.S. 700, 712(2010) that a party that obtains

a Judgment in its favor acquires a "Judicially Cognizable" interest

in ensuring compliance with that

T../4

uu gment

and has standing to seek

its vindication. (2) and quote " This Court has previously denied

contempt sanction where . • • • defendants who were not complying with

a

Court

required

order

to

the Court's

opportunity

to

purge

satisfaction were not

that contempt.

This

given

the

Court should

apply the same analysis here", see Defendants Memorandum of law in

opposition to contempt and Writ. Clearly this argument made by the

defendants in their response memorandum was indeed an admission of

contempt and a plead to be allowed time to purge after 35 years of

intentional noncompliance.

On March 19th,

2019, petitioner filed

his reply to the defendants response to motion to enforce, finding

of contempt and application for Writ of Sequestration. Petitioner

re-established that defendants will continue to act in bad faith

and

will

continue

to

create

delay

17

to

avoid

compliance.

Since

,/■

Petitioner here has meet

the requirement of F.R.C.P.

70(c) due

process and New York State C.P.L.R. 6201(5), Circuit Clerk should

have issued a Writ of Sequestration against the defendants property

back in March of 2019.

makes

clear

that

the

The provision remedies of F.R.C.P. 70(c)

Clerk must issue a Writ of

Sequestration

against the defendants property to compel obedience.

2) The Defendants Bad Faith Attempt to Commit Fraud in the Circuit

Court to Deny This Court Appellate Jurisdiction Over The McCray

v. Lee Contempt and Writ Proceeding.

In La Buy v. Howes Leather Co., 352 U.S. 249(1957) this Court

established the need for a superior Court to maintain supervisory

control over the conduct of an inferior Court. The following events

about to be discussed involves the defendants acting behind the

scenes to coerce the Circuit Court into abusing its discretion

through

the

Circuit

Court's

enforcement,

contempt

and

concluded on March 19th,

Writ

2019,

Clerk,

Petitioner

of

Sequestration

Petitioner’s

motion

for

proceeding

appellate briefings

concluded on April 3rd, 2019. Circuit Clerk in refusing to issue or

deny issuance «f Writ denied this Court appellate Jurisdiction. On

May 30th, 2019, two months after submission of contempt and Writ

Proceeding,

Circuit panel entered an order granting petitioner’s

motion for counsel with directions to brief two question already

addressed by the Petitioner in his motions and appellate briefs.

The Second Circuit in an attempt to relieve the petitioner of the

power to enforce the Anderson v. Coughlin consent decrees appointed

Attorney Kevin King as counsel for the Petitioner on June 7th,

18

2019. Attorney Kevin King on June 12th, 2019, sent the Petitioner a

conflict of

kevin

interest

King's

engagement

waiver

appointment

letter

was

engagement

and

meant

his

to

letter to sign.

conflict

remove

of

the

Attorney

interest

Petitioner

waiver

from

the

litigation and effectively put an end to the enforcement of the

Anderson v. Coughlin consent decrees and contempt proceeding against

the defendants. With the contempt proceeding complete and appellate

briefings

filed the

Circuit

Court's

need

to

reopen

the briefing

schedule and appoint counsel for the petitioner was questionable.

Indeed it was not only an effect to give the defendants another bite

at the apple but to completely put an end to the Petitioner's power

to enforce rights entitled to him and aid the defendants escape a

contempt

finding.

Attorney

Petitioner

to

his

sign

Kevin

conflict

King

of

repeatedly

interest

pleaded

waiver

to

engagement

letter, and when the petitioner refused, Attorney Kevin King asked

the Court to appoint him Amicus without the Petitioner's consent.

Attorney Kevin King's interest in the McCray v, Lee action became

more

questionable

and

the

Circuit

Court's

intent

in

appointing

Attorney Kevin King to represent the Petitioner after the contempt

proceeding became much clearer. On June 27th, 2019, Petitioner file

three Judicial misconduct Complaint against the Circuit panel that

appointed Attorney Kevin King counsel for the Petitioner. On August

8th, 2019, a new Circuit panel granted Attorney Kevin King's request

to

be

appointed

Amicus

in

support

of

the

Petitioner

without

Petitioner's consent. Circuit Clerk intentionally withheld serving

Petitioner

with

Notice

of

the

August

8th,

2019,

Court

order

appointing Attorney Kevin King Amicus until September 6th, 2019, in

19

violation of F.R.A.P. 45(c). On September 6th, 2019, Attorney Kevin

King

filed his Amicus brief.

Attorney Kevin King's Amicus brief

raised weak arguments Amicus could easily abandon. Circuit panel's

appointment

of

Attorney

Kevin

King

as

Amicus

was

an

abuse

of

discretion, in civil rights cases, federal Court's often invite the

United States Attorney General's office to participate as Amicus

curiae and empower the Attorney General's office to initiate any

further criminal

proceeding,

see

Faubus v.

U.S.,

254

F.2d

797,

802(8th Cir. 1958). Petitioner filed an objection on September 25th,

2019, for a stay of further proceeding to appeal to the U.S. Supreme

Court. The Petitioner motion for objection to Amicus appointment and

stay of proceeding was file onto the docket record missing page 4

and

5

of

the motion.

When Petitioner discovered his motion

for

objection was missing two pages on the record on October 6th, 2019,

Petitioner

filed a Judicial misconduct Complaint against Circuit

Chief Judge for allowing such misconduct as fraud and retaliation in

his Court against the Petitioner. On October 7th, 2019, defendants

filed their brief in opposition to Amicus brief. In the defendants

October 7th, 2019, brief, defendants argued that they were entitled

to qualified immunity for violation the Anderson v. Coughlin consent

decrees that they consented to. On October 16th, 2019, defendants

counsel

filed a statement

local rule 34.1,

for oral argument pursuant

to Circuit

to engage in oral argument with a pro se inmate

prisoner in the Circuit Court. On October, 21st, 2019, Amicus filed

his statement for oral argument. On October 22od, 2019, the Court

entered

an

order deferring Amicus

October 24th,

motion

for oral

argument.

On

2019, a new Circuit panel entered an order denying

20

<

/

Petitioner motion for stay of proceeding. On October 30th,

2019,

Petitioner filed his statement for oral argument. On November 25th,

2019, Circuit panel proposed oral argument calendaring for the week

of February 18th, 2020. On November 14th, 2019, Petitioner filed a

motion for Judicial Notice of law citing this Court's decision in

Frew v.

Hawkins,

540 U.S.

431(2004).

Circuit Clerk did not file

Petitioner's motion for Judicial notice until November 27th, 2019,

after Petitioner sent a second copy of said motion to Circuit Chief

Judge's Office. On December 3rd, 2019, Circuit Judge Jose Cabranes

whom was a member of the Circuit panel that appointed Attorney Kevin

King

Amicus,

entered

a

decision

dismissing

all

of

Petitioner's

Judicial misconduct Complaints against Circuit panel that appointed

Attorney Kevin King counsel for Petitioner and Circuit Chief Judge.

Circuit

Judge Jose

Cabranes

should have disqualified himself as

acting chief Judge pursuant to Rule 19(a) of the Rules of Judicial

misconduct proceeding

Kevin King Amicus.

for his

involvement

On December 6th,

in appointing Attorney

2019, defendants filed their

response to Petitioner's motion for Judicial notice, defendants in

their

response

motion

opportunity

to

decrees.

December

On

purge

made

and

12th,

clear

that

they

2019,

that

they

never

never

violated

Petitioner

sought

any

filed his

an

consent

reply

to

defendants response to motion for Judicial notice, Petitioner cited

this

Court's

resent

decision

in

Taggart v.

Lorenzen,

139

S.Ct.

1795(2019) and objected once again to the Circuit Court's abuse of

its

discretion

in undermining

Petitioner's

right

to enforce and

vindicate Judgments entered in his favor pursuant to F.R.C.P. 70.

This Court in Union Tool Co. v. Wilson, 259 U.S. 107, 112(1922) made

21

cr

clear that in a contempt proceeding the order to be entered in such

a proceeding is not exclusively or necessarily a discretionary one.

Legal discretion in such a case does not extend to a refusal to

apply well settled principles of law to a conceded state of facts.

Indeed,

the

standard

for

the McCray v.

Lee

contempt

and Writ

proceeding has already been set by this Court in Hutto v. Finney,

437 U.S. 678(1978).

3) Comparative Convenience Test

Petitioner

respectfully

request

that

this

Court

invoke

the

Comparative Convenience test to compel the defendants to, once and

for

all,

come

forward

compliance with

the

with

terms

material

of

evidence

the Anderson v.

proof

of

their

Coughlin consent

decrees in their response to this Petition for Writ of Mandamus. A

comparative convenience test here will prove that the defendants

sought an opportunity to purge at the contempt proceeding in bad

faith

and

compelled

that

to

the

enter

Second

a

Circuit

contempt

Court

finding

of

Appeals

against

the

should

be

defendants

pursuant to F.P.C.P. 70(e).

Comparative Convenience test is well rooted in common law. see

Morrison v. California, 291 U.S. 82(1934). Comparative Convenience

test is based on the policy determination that it is fair to compel

a defendant to come forward with evidence to which he has ready

access where placing such a burden on the plaintiff would render

the suit to difficult. Under the Comparative Convenience test, the

defendant is in a better position to place before the Court the

most

significant

facts

relevant

than

the

Petitioner is.

In the

matter before the Court, not only is the defendants required to

22

come forward with material proof of their compliance with the terms

of the Anderson v. Coughlin consent decrees but the defendants have

yet to come forward with any material evidence to show proof of

compliance. Defendants continue to claim without proof that they

abandoned their responsibility to Inmate prisoners with no ability

to remove piles of

snow and ice

from the grassy areas

of

the

facility's outdoor exercise areas. In fact, defendants have yet to

produce any

documental

evidence

to

support

defeat

Petitioner's

prima

facie

case,

the

their claim nor

that

the

to

defendants

allowed piles of snow and ice to unreasonably accumulate in the

Green Haven correctional facility outdoor exercise yards all winter

long until it naturally melted away in the spring, that defendants

never created any winter snow and ice removal access ways to remove

piles of accumulating snow and ice from the facility's closed-in

outdoor exercise yards, and that the defendants had knowledge of

inmate prisoners burying weapons and drugs in the grassy areas of

the facility outdoor exercise yards and refused to pave over the

grassy

areas

of

the

facility

exercise

yards

to

cure

both

Constitutional violations.

This Court in it's resent decision in Taggart v. Lorenzen, 139

S.Ct.

1795(2019)

quoted

MeComb

v-

Jacksonville

Co.,

336

U.S.

187(1949) and reestablished the need to place the burden of any

uncertainty

in

the

decree

on

violator, see Irvin v. Harris,

same

defendants

here

at

the

shoulder

of

a

persistent

2019 WL 6121571(2d Cir 2019). The

the

contempt

proceeding

sought

an

opportunity to purge more than eight months ago, hence, the Second

Circuit Clerk unlawfully withheld

23

issuance of a lawful Writ of

V

J

s

Sequestration against the defendants, but to date defendants have

yet to produce before the Second Circuit any proof of diligent

compliance. In fact, defendants in their response to Petitioner's

motion

for Judicial notice dated December 6th,

2019,

defiantly

claimed they were not in violation of any consent decrees. Clearly

the defendants will remain willful and continue to seek ways to

evade compliance until a Judgment is entered. It is fair to once

and for all compel the defendants to come forward with evidence to

which they have ready access to; material evidence to defeat the

Petitioner's allegation on affidavit that defendants are aware of

inmate prisoners digging holes in the grassy areas of the Green

Haven

correctional

facility

outdoor

exercise

areas

and burying

weapons and drugs in the grounds of the facility's exercise yards,

material

evidence

to

defeat

Petitioner's

first

hand

witness

affidavit statement and the operation Complaint's allegations that

defendants

knowingly

ignored

piles

of

winter

ice

and

snow

to

remain unremoved in the Green Haven correctional facility outdoor

exercise yards till it naturally melted away in the spring months

in violation

of

the

terms

of

the Anderson v.

Coughlin consent

decrees, material evidence to defeat the Petitioner's claim that

defendants closed-in facility outdoor exercise yards at Green Haven

correctional facility have no winter snow and ice removal egress or

access

ways

to

allow

machinery

to

enter

and

remove

piles

of

accumulating snow and ice as claimed by the District Court Judge on

behalf

of

the

defendants,

The

defendants

is

an

information

collecting State agency that have ready access to these material

evidence and their failure to produce the necessary proof will be

further evidence of their willful defiance and purposeful delay

24

J

tactic in bad faith. In the event that the defendants fail to meet

the Comparative Convenience test in their response to this Petition

for Writ of Mandamus, this Court should compel the Second Circuit

Court to proceed pursuant to F.R.C.P. 70(e) and enter a contempt

finding against the defendants for acting in bad faith, see Taggart

v. Lorenzen, 139 S.Ct. 1795(2019).

D. THE PETITIONER HAS NO OTHER MEANS TO RECEIVE ADEQUATE RELIEF

FROM ANY OTHER COURT.

!t is apparent that the refusal of the Circuit Clerk to issue

a Writ of Sequestration pursuant to F.R.C.P. 70(c) and the lack of

decision

by

proceeding,

the

as

Circuit

well

as

Court

in

the

continue

a

contempt

issuance

and

of

enforcement

non

final

unreviewable orders leave the Petitioner with no avenue for relief

other than Mandamus in this Court. The Second Circuit has neither

rendered a final decision nor decided any question of law which

would allow the Petitioner herein to seek review by Certiorari. The

Second Circuit Clerk abdicated it's lawful duty to issue a Writ of

Sequestration authorized by law and the Circuit Court's avoidance

to decide a properly prosecuted and fully heard equitable contempt

proceeding, ripe for decision, in favor of successive briefings is

evidence

of

an attempt

to deny this

Court

it's opportunity to

exercise its appellate Jurisdiction of review. Only through this

Court's intervention, compelling the Second Circuit Clerk to issue

a Writ of Sequestration forthwith and compelling the Circuit Court

to enter a decision or contempt

finding against the defendants

pursuant to F.R.C.P. 70(e) for acting in bad faith can there be an

25

4n

end to the Circuit Court's avoidance practice. The issues involved

in

the

McCray

v.

Lee

contempt

and

Writ

proceeding

are

of

exceptional character and of great public importance. see Wagner v.

Warnasch, 156 Tex. 334, 295 S.W.2d 890(1956)(

consent decree

requiring construction work enforced specifically ). This Court has

always held

appellate

that

a

Writ

of

Mandamus

Jurisdiction which might

may

issue

in

aid of

the

otherwise be defeated by an

unauthorized action of the Court below.

The Second Circuit Clerk's refusal to issue a Writ pursuant

to F.R.C.P. 70(c) and the Circuit Court s avoidance to decide the

contempt and enforcement of the Anderson v. Coughlin consent decree

proceeding has obvious adverse effects on the Petitioner inmate

prisoner, as well as the consent decrees sought to be enforced.

The

Circuit Clerk and Circuit Court's refusal to act directly abrogates

the petitioner's strong interest to enforce the enforceable consent

decrees on behalf of his Class in the interest of the

rights sought

pi.i_ected, which is the ultimate goal of the contempt and

Writ of Sequestration proceeding. The fundamental precept of an

equitable contempt and Writ of Sequestration proceeding as provided

by the Civil remedial provisions of F.R.C.P. 70 is that the Court

will expeditiously review the matter before it. The Second Circuit

Court's purposeful inactivity bespeaks a studied indifference to,

even contempt for

the legitimate Eighth amendment interests of

inmate prisoners embodied in institutional reform consent decrees,

and

the

decrees

Circuit

and

deny

Court's

this

issuance of Mandamus.

preference

Court

to

appellate

terminate

said

Jurisdiction

Petitioner respectfully request

26

consent

warrants

that

this

r

Court intervene in the interest of the politically weak Petitioner

and his Class of Similarly Situated and compel the Second Circuit

Court and Clerk to perform its proper, lawful function in this case

and Order Civil, remedial and coercive relief pursuant to F.R.C.P.

70(c) and (e) against the defendants, compelling Civil obedience and

vindicate Rights entitled to the Petitioner, see Hutto v. Finney,

437 U.S.

678(1978),

McComb v.

Jacksonville

Paper Co.,

336 U.S.

187(1949) and Taggart v. Lorenzen, 139 S.Ct. 1795(2019).

CONCLUSION

FOR THE REASONS STATED ABOVE,

Petitioner respectfully pray

that this Court grant his request for a Writ of Mandamus to the

United States Court of Appeals for the Second Circuit, the Honorable

Judge Amalya Kearse, Circuit Judge Barrington Parker, Circuit Judge

Richard Sullivan and Circuit Clerk Catherine O'Hagan Wolfe.

I declare under penalty of perjury that the foregoing is true and

correct.

Dated: Auburn, New York

January 3^ , 2020

Respectfully Submitted,

Signature:

McC&a 4

Address:Auburn Correctional facility

P.O.Box 618, Auburn, New York

13024

27