Petition for Writ of Certiorari — Neil McNaughton, Petitioner v. Eric Adams, Mayor of the City of New York, et al.

Supreme Court briefDec 28, 2021

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No.

Supreme Court, U.S.

FILED

3fa W&t

Supreme Coart of the fHntteh &tatig

DEC 2 8 2021

OFFICE OF THE CLERK

NEIL MCNAUGHTON,

Petitioner,

BILL de BLASIO, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

Neil McNaughton

10 West 14th Street, Apt. 418

New York, New York 10011

(212)675-1110

Petitioner Pro Se

RECEIVED

JAN -4 2022

OFFICE OF THE CLERK

SUPREME COURT ll g

-e i*

QUESTIONS PRESENTED

This is petitioner’s attempt to address through le' gabaction persistent harassment by the New York City

Police Department (“NYPD”) and others that was

started in response to false allegations made to the

police by petitioner’s mentally ill sister, now deceased,

and that has been occurring in New York City since the

summer of 2011. As is set forth more fully below, this

is petitioner’s second such attempt. These are the ques

tions presented in this petition:

1. As demonstrated by the rulings of the district

court and the circuit court in this action and in a prior

related action, does the persistent misapplication of

the Twombly plausibility test by Federal judges invar

iably lead to a violation of this Court’s mandate in

Erickson v. Pardus regarding the proper judicial treat

ment of well pleaded factual allegations?

2. Does the repeated failure of the presiding

judges herein and in a prior related action to accurately

describe the factual predicates and claims contained in

the pro se petitioner’s complaint constitute an issue that

needs to be specifically addressed by this Court?

3. Should the use of memorandum opinions and

summary orders by members of the Federal judiciary

be sharply curtailed because of its tendency to pro

mote and sanitize irrational reasoning and shoddy ju

risprudence, and in furtherance thereof should this

Court issue clear guidelines regarding the appropriate

employment of these widespread violations of judicial

accountability?

PARTIES TO THE PROCEEDING

Petitioner Neil McNaughton was the plaintiff in

the district court proceeding and appellant in the court

of appeals proceeding. Because the petitioner’s com

plaint was dismissed sua sponte by the district court

before issue had been joined, no other parties have par

ticipated in this action.

Respondents the City of New York; the New York

Police Department; the New York City Department of

Parks and Recreation; New York City Mayor Bill de

Blasio; then Commissioner of the New York Police De

partment Dermot Francis Shea; then Commissioner of

the New York City Department of Parks and Recrea

tion Mitchell J. Silver; police officers, police supervi

sors and detectives Jane and John Doe 1-200; civilian

police employees Jane and John Doe 1-200; Estate of

Laura G. McNaughton; Fern Lee; Galen J. Criscione;

Criscione Ravala LLP; David L. Moss; David L. Moss

& Associates, LLC; 5 West 14th Owners Corp; Century

Management Services; Norma Bellino; Lisa Golub; and

civilians Jane and John Doe 1-200 all were originally

named as defendants in petitioner’s complaint in this

action.

Ill

RELATED CASES

•

McNaughton v. de Blasio, No. 20-cv-06991,

U.S. District Court for the Southern District

of New York. Judgment entered October 8,

2020.

•

McNaughton v. de Blasio, No. 20-03778-cv,

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

Judgment entered August 27, 2021.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

PARTIES TO THE PROCEEDING.......................

RELATED CASES..................................................

TABLE OF CONTENTS........................................

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

PETITION FOR A WRIT OF CERTIORARI.......

OPINIONS BELOW................................................

JURISDICTION.......................................................

STATUTES AND CONSTITUTIONAL PROVI

SIONS INVOLVED..............................................

STATEMENT OF THE CASE AND EXPLANA

TION OF THE FORMAT....................................

REASONS FOR GRANTING THE PETITION...

II.

Petition Submitted to the Second Circuit...

Portions of Brief Submitted to the Second

Circuit............................................................

Point II This is Jurisprudence?.................

Point III Is This Jurisprudence?...............

B. The Ostrich Jurisprudence Practiced

by the Lower Court Does Not Dimin

ish the Validity of Appellant’s Claims

Under the Fourth Amendment............

C. Appellant’s First Amendment Rights

Have Been Violated in Oh So Many

Ways.........................................................

TABLE OF CONTENTS - Continued

Page

D. The Actions of the City Defendants Vi

olated Appellant’s Right to Due Pro

cess in Two Different Ways.................

Point V Facts, Lies and Inferences............

III. Ich bin nicht der Mund fur disen Ohren....

CONCLUSION

APPENDIX

Summary Order, United States Court of Appeals

for the Second Circuit (August 27, 2021)........

Order, United States Court of Appeals for the

Second Circuit (March 1, 2021)........................

Order, District Court for the Southern District

of New York (November 4, 2020)......................

Memorandum Opinion and Order, District

Court for the Southern District of New York

(October 8, 2020)................................................

Order denying Rehearing, United States Court

of Appeals for the Second Circuit (October 7,

2021).................................................................... A23

Notice of Motion Pursuant to Rule 59 and Affi

davit in Support (without exhibits), filed No

vember 2, 2020...................................................

A25

Complaint, filed August 28, 2020......................... A39

TABLE OF AUTHORITIES

Page

Cases

Acevedo v. Surles, 778 F. Supp. 79 (S.D.N.Y.

1991).........................................................................

Amnesty American v. Town of West Hartford, 361

F.3d 113 (2d Cir. 2004).........................................

Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710,

173 L.Ed.2d 485 (2009)........................................

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S.Ct. 1955,167 L.Ed.2d 929 (2007)...................

Boddie v. Connecticut, 401 U.S. 371,91 S.Ct. 780,

28 L.Ed.2d 113 (1971)..........................................

Chambers v. Baltimore & Ohio R.R., 207 U.S.

142, 28 S.Ct. 34, 52 L.Ed. 143 (1907).................

Champagne v. Gintich, 871 F.Supp. 1527 (D.

Conn. 1994)..............................................................

Ciambriello v. County of Nassau, 292 F.3d 307

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

Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995)......

Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000)..........

Doe v. City of Hartford, 2004 U.S. Dist. LEXIS

9824 (D. Conn. 2004).............................................

Doe v. Dep’t ofPub. Safety ex rel. Lee, 271 F.3d 38

(2d Cir. 2001), rev’d on other grounds sub nom.

Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1,

123 S.Ct. 1160,155 L.Ed.2d 98 (2003).............

Dougherty v. Town of N. Hempstead Bd. of Zon

ing Appeals, 282 F.3d 83 (2d Cir. 2002)............

Vll

TABLE OF AUTHORITIES - Continued

Page

Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197,

167 L.Ed.2d 1081 (2007)........................................

Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9

L.Ed. 222 (1962)......................................................

Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794 (2d

Cir. 1999).................................................... ..............

Graham v. Conner, 490 U.S. 386,109 S.Ct. 1865,

104 L.Ed.2d 443 (1989).........................................

Graham v. Perez, 121 F. Supp.2d 317 (S.D.N.Y.

2006)..........................................................................

Logan v. Zimmerman Brush Co., 455 U.S. 422,

428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265

(1982).........................................................................

Marczeski v. Brown, 2002 U.S. Dist. LEXIS

22806 (D.Conn. 2002).............................................

McGee v. Doe, 568 F.App’x 32 (2d Cir. 2014).........

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1978)......................

Okin v. Vill. of Cornwall-on-Hudson Police Dep’t,

577 F.3d 415 (2d Cir. 2008)...................................

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47

L.Ed.2d 405 (1976)..................................................

Riley v. California, 573 U.S. 373,134 S.Ct. 2473,

189 L.Ed.2d 430 (2014)...................................... ...

Ronzani v. Sanofi, 899 F.2d 195 (2d Cir. 1990)....

State v. Culmo, 43 Conn. Supp. 46 (Conn. Supp.

1993).................... .....................................................

Vlll

TABLE OF AUTHORITIES - Continued

Page

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889(1968)................................................

Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010)...

United States v. Warshak, 631 F.3d 266 (6th Cir.

2010).........................................................................

Vann u. City of New York, 72 F.3d 1040 (2d Cir.

1995).........................................................................

Wolfv. McDonnell, 418 U.S. 539, 94 S.Ct. 2963,

41 L.Ed.2d 935(1974)..........................................

Woodward v. Mennella, 861 F. Supp. 192

(E.D.N.Y. 1994).......................................................

Statutes

28 U.S.C. §1254(1)

42 U.S.C. §1983....

PETITION FOR A WRIT OF CERTIORARI

Neil McNaughton petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW

The Second Circuit’s denial of petitioner’s motion

for a hearing en banc is reproduced at Appendix (here

inafter “A”) 5-6. The Second Circuit’s Summary Order

affirming the district court’s dismissal is reproduced at

Al-4). The Second Circuit’s denial of petitioner’s mo

tion for reconsideration and rehearing en banc is re

produced at A23-24. The opinions of the District Court

for the Southern District of New York are reproduced

at A9-22 andA7-8.

JURISDICTION

The Court of Appeals entered judgment on August

27, 2021. (Al-4). The court denied a timely petition for

rehearing en banc on October 7, 2021. (A23-24). This

Court has jurisdiction under 28 U.S.C. §1254(1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case does not involve interpretation of statu

tory or constitutional provisions.

STATEMENT OF THE CASE AND

EXPLANATION OF THE FORMAT

Petitioner has adopted a somewhat unorthodox

format in his petition. Petitioner in this petition is as

serting two claims: not merely that the legal issues

were wrongly decided as relates to the individual

causes of action contained in the complaint, but also

that the Federal judicial decision-making process with

regard to pro se litigants is flawed and essentially non

functional. In petitioner’s personal experience as a pro

se litigant, comprised of three actions brought and

three appeals taken during the last quarter century,

justice is never rendered. To address both points sim

ultaneously, petitioner has elected to reproduce a peti

tion and portions of a brief submitted to the court

below in the instant action. The portions of the brief

submitted here adequately address most of the indi

vidual legal issues raised herein (obviously that is

petitioner’s personal opinion), if at a much more pedes

trian level than this Court usually encounters.

These legal issues are simple. It is the application

of the law to the facts by the members of the federal

judiciary that is suspect. It is petitioner’s belief that by

examining what petitioner argued before the court

below, and then examining the rulings of the court, the

validity of petitioner’s second claim will be clearly ap

parent.

The factual predicates underlying petitioner’s

claims are simple to state. Since 2011, petitioner has

been stalked by members of the New York City Police

Department (“NYPD”) and hundreds of civilian vigi

lantes, presumably because of his sister’s false claim to

the NYPD in 2011 that petitioner is a pedophile. With

regard to this untrue contention, petitioner would note

that he has lived in the same apartment in New York

City since 1985; no one has ever seen him approach a

child during that entire time; and no one has ever sug

gested that petitioner might be a pedophile before his

sister started spreading her untruthful claim (Com.

f 52; A62).

Since March of 2020, virtually every time peti

tioner steps outside his apartment building, he sees a

“stroller stalker” or a police car as he leaves the build

ing. (Com. f 152; A94). Petitioner’s trips on nice days

to a local park are fraught with stroller stalkers, punc

tuated with stalking by New York City Department of

Parks and Recreation (“Parks”) employees, other civil

ians, as well as by members of the NYPD. On a half

dozen occasions, petitioner has looked up from a book

he was reading while sitting in the park only to see the

naked genitals of a young child that a nanny or parent

had placed on a blanket on the ground in front of where

petitioner was sitting. (Com. SI187; A110).

Nearly every business in the neighborhood has

been told that the petitioner is a pedophile, as peti

tioner can ascertain from their behavior towards him

(see, e.g., Com. % 162; A98), and petitioner’s ability to

hire an attorney and to prosecute his legal actions has

been interfered with in almost every way possible.

(Com. f 13; A45).

REASONS FOR GRANTING THE PETITION

The reasons for granting this petition are set forth

in the following reproduction of a petition for hearing

en banc that petitioner filed as part of his appeal to the

Second Circuit from the district court’s sua sponte dis

missal of petitioner’s complaint before issue had been

joined. This petition was denied by order entered

March 1, 2021. (A5-6).

PETITION SUBMITTED TO THE SECOND

CIRCUIT

The only changes made to the original petition are

that the citations to the record have been changed to

citations to the appendix herein and certain case cita

tions have been cleaned up. Here is that petition:

RULE 35(b)(1) STATEMENT

In my honest opinion, the questions presented by

this petition satisfy the criteria of Federal Rule of Ap

pellate Procedure (“FRAP”) 35(b)(1). The use and mis

use of memorandum opinions and decisions at both the

district court and the appellate court level and the at

titude, both conscious and unconscious, of the members

of the Federal judiciary towards pro se litigants and

how it affects their treatment of these litigants are two

questions of exceptional importance that, as appel

lant’s litigation history shows, are impacting the abil

ity of Federal courts to render justice. As stated herein,

in the instant action and in an earlier action appel

lant had brought complaining of the same wrongs,

McNaughton v. de Blasio, 14-cv-221 (KPF), app. den.,

15-629, each of the district court judges made approxi

mately one dozen material misstatements of fact or

material omissions of fact in the opinion dismissing ap

pellant’s complaint. Not only does this practice result

in skewed decisions, it also is not efficient.

For these reasons, appellant pro se Neil McNaugh

ton urges this court to hear this appeal en banc.

ARGUMENT

“[WJhether the fact that a victim of one of

the largest cases of police corruption in this

city in this century has had his truthful com

plaint accurately describing the situation dis

missed by a Federal district court, twice,

constitutes conclusive proof that America cur

rently lacks a functioning Federal system of

civil justice!?]”

This quote from appellant’s Statement of Issues in

his brief in this appeal highlights the two related ques

tions of exceptional importance raised in appellant’s

complaint for which appellant is respectfully request

ing en banc consideration. First, the use and misuse of

memorandum opinions and decisions at both the dis

trict court and the appellate court level. Second, the

attitude, both conscious and unconscious, of the mem

bers of the Federal judiciary towards pro se litigants

and how it affects their treatment of these litigants.

The district court, the Honorable Jesse M. Furman

presiding, apparently recognizing the importance of

these questions, graciously dismissed appellant’s com

plaint by the attached Memorandum Opinion and Or

der filed October 8, 2020 (the “Opinion”), thereby

transforming appellant’s theoretical objection into a le

gal matter ripe for adjudication by this court. Indeed,

the lower court appeared to be so attuned to the im

portance of these issues that it even went so far as to

dismiss appellant’s complaint sua sponte before issue

had been joined, undoubtedly so that this court could

address these important questions on a clean record,

uncluttered by adversarial cavils.

Please don’t throw this opportunity away. Appel

lant would guess that many members of the Federal

judiciary probably believe that these memorandum

opinions are primarily used because there might be

one legal sticking point in an otherwise meritless ac

tion that clearly deserves dismissal, and that this

mechanism is a necessary evil caused by limited judi

cial resources which does no real harm to the under

pinnings of Federal civil jurisprudence. Appellant’s

experience is not that.

Appellant is a long-retired lawyer, with a fair

amount of experience in Federal practice, at one point

admitted to practice before the United States District

Courts in the Southern and Eastern Districts of New

York, as well as briefly before this court. He received

his legal education at the New York University School

of Law, and his initial work experience as an associate

at Skadden, Arps, Slate, Meagher & Flom. To the ex

tent that the members of this court see anger or bitter

ness in appellant’s submissions, it is based upon the

fact that he worked in the legal system for years, and

that he believed in it.

En banc consideration of the instant appeal would

allow the members of this court to see its current sys

tem of Federal jurisprudence from the point of view of

one of its casualties. It is not a pretty sight. The system

is not working now, and it’s only going to get worse. It

is not possible to properly handle twenty-first century

legal throughput with an eighteenth century legal sys

tem. It is not only pro se litigants who suffer from this

untenable situation, they simply suffer the most.1

1 An analysis of the specific changes that will be required to

restore Federal civil jurisprudence to working order is far beyond

the parameters of this appeal, but appellant will summarily ad

dress the issue, because he believes that many judges might be

lieve that currently there is no viable alternative to the overuse

of memorandum opinions and decisions. They’re probably right.

That’s why “sea change” modifications to the system eventually

will be needed. At the least, the antiquated “motion-oppositionreply-decision-reargument-opposition-reply-decision” cycle needs

to be abandoned, and the six month or year-long time penalty that

The court undoubtedly is aware that the legal pro

fession in general is suffering serious economic hard

ship and decline. The reason is that it costs too much

money and takes too much time to bring lawsuits gen

erally, and to bring one in Federal court in particular.

It should be noted that attorneys who contemplate

representing a client must do a cost/benefit analysis

that has little to do with the ultimate merits of the cli

ent’s claims and much to do with the time and expense

it will be necessary to expend in order to prove those

merits. Some years ago, I had an attorney friend who

specialized in dental malpractice tell me that because

the dental malpractice insurance companies had as a

matter of policy simply stopped settling dental mal

practice cases, he would refuse to take a case where the

estimated recovery was under one hundred thousand

dollars, because it was not economically feasible to

bring those cases: he would end up losing money.

While this court naturally is most concerned with

the efficient use of judicial resources, the amount of

time and expense parties expend is an even greater

reason why Federal practice is collapsing. Where the

court may spend a day, counsel for the parties are often

spending weeks or months, and their clients must pay

for that time.

Right now the only person or business in this

country who can afford to bring a counseled action not

on a contingent fee basis in this country is a very rich

virtually every Federal action suffers while a motion to dismiss is

made and decided needs to be eliminated, to the extent possible.

person or business. Since the treatment of pro se liti

gants that appellant describes in his complaint and ap

peal falls below any acceptable standard ofjustice, this

means that as a practical matter absent physical in

jury or where the evidence is overwhelming, meaning

ful access to Federal courts is not available to the poor

or the middle class in America.

Before appellant submits for the court’s review his

analysis of this problem, he wishes to direct the court’s

attention to a not unrelated issue.

A Word About Appellant’s Rule 59 Motion

On November 2, 2020, appellant filed a motion to

reargue pursuant to Rule 59 of the Federal Rules of

Civil Procedure with the district court (the “Rule 59 af

fidavit”). That motion was denied two days later, by dis

trict court order filed November 4, 2020, unbeknownst

to appellant. Since appellant’s reading of FRAP 4(a)(4)

was that the lower court’s action was stayed by his ap

peal, he did not look at PACER to discover whether

action had been taken. Appellant did not receive a

mailing from the district court containing the order

denying his motion. Indeed, appellant also did not re

ceive a recent “defective filing” mailing from this court,

and only learned of the problem when he happened to

call his case manager. If the named defendant David L.

Moss, who briefly was admitted pro hac vice to practice

before this court and then requested termination, sub

mitted a certificate of service stating that he sent his

letter requesting termination from the appeal to appel

lant, appellant also did not receive that letter.

Appellant lives in a relatively upscale doorman

building in Chelsea, and the mailbox bank in the mail

room is often left open by the mailman for long periods

of time during the day. Unfortunately, when a party is

suing the co-op in which he lives, and the members of

the support staff have already committed many crimes

against him, including dozens of incidents of burglary

and trespassing and illegal entry, the barrier to further

illegal activity is lowered. The last time appellant had

this sort of problem with his mail was three years ago,

when he never received notice of a letter from a Mas

sachusetts attorney sent by registered mail of his late

sister’s death and the subsequent probate hearing.

Since appellate time limitations are jurisdictional,

and appellant first learned of the district court’s action

a few days ago, months after it occurred, obviously this

court will not be reviewing the dismissal of appellant’s

Rule 59 motion on appeal. However, the motion is part

of the record on appeal (Appendix (hereinafter “A”) 2538 [without exhibits]), and this court certainly has the

power to take judicial notice of it, and of the order dis

missing it (A7-8). Since the court’s review of the in

stant appeal is de novo, appellant’s motion nonetheless

may provide some guidance to this court as to how to

rule on the appeal.

For example, in paragraph 186 of his complaint

appellant describes a series of interactions with a

“Caucasian gentleman” and his nephew on May 4th

and 5th of 2020 in Washington Square Park (A109110). As part of Exhibit 2 to appellant’s motion (Photo

1), appellant provides a photograph of the gentleman

in question and his nephew, date stamped May 4,

2020.2 At the least this is one indication that the alle

gations in appellant’s complaint are truthful and accu

rate.

The date stamp is very relevant to appellant’s

claims, since in paragraphs five through eleven of his

affidavit in support of the Rule 59 motion (A-28-31),

appellant states under oath that he had set the camera

to include both a date and time stamp, and had never

changed it, and that all of the photographs he had

viewed throughout the spring and summer, and there

were hundreds of such photographs, none had con

tained only the date stamp. All had contained both the

date stamp and the time stamp.

This is probative evidence that someone is tamper

ing with appellant’s camera data chips. And in appel

lant’s sworn testimony, since one of the data chips that

was tampered with went with appellant whenever he

left the apartment, in his camera, the fact that the pho

tographs on it had been altered is a clear indication

that the tampering had been done at night when ap

pellant was sleeping. (^[7; A-29). Further, appellant’s

affidavit notes that many other pictures of the “Cauca

sian gentleman” that he had taken were missing from

2 No exhibits of the affidavit are included in the record for

this petition for a writ of certiorari. Petitioner is not rich, and he

was constrained to limit the financial burden of making this peti

tion.

the data chip. (% 11; A-30-31). In addition, other photo

graphs appellant had taken were missing from a com

puter that is not connected to the internet. (‘Jt 8; A-29).

Appellant’s conclusion that this activity was police

related of course is an inference. But it behooves some

one who is challenging this inference to provide an

other inference as to what caused the time stamp to

disappear from the photographs.

Appellant’s affidavit in support of the Rule 59 mo

tion also contains, inter alia, probative evidence of fur

ther attempts to interfere with appellant’s ability to

prosecute his Federal claims, in particular, two defec

tive jurats from a notary that might have prevented

the court considering his affidavit in support, ('flu 2830; A-36-37).

In the first action appellant brought complaining

of these matters, he specifically notes that one of the

ways the police harass him is interference with his

ability to have affidavits notarized. See, Appellant’s

Brief on Appeal in 15-629, pp.9-11. Appellant repeated

those claims in the complaint in the instant action.

(Com. ff 11-13; A-44-45).

In his Rule 59 motion, appellant provides actual

evidence of what has been occurring, including appel

lant’s sworn testimony that the notary in question told

appellant he had fifteen years experience and had

never had a notarization rejected. So, obviously, the de

fective notarizations were intentional.

Thus, appellant in his Rule 59 motion provides

probative evidence of Fourth Amendment, First Amend

ment and Fourteenth Amendment violations of ap

pellant’s constitutional rights, including numerous

warrantless searches. But the lower court denied it in

a one page order. (A7-8).

Appellant’s Rule 59 motion and the district court’s

order denying it also are relevant to the instant appeal

and appellant’s instant petition notwithstanding that

appellate review is unavailable, because together they

provide a perfect illustration of one of the two im

portant questions for which appellant is requesting en

banc consideration: the attitude of the members of the

Federal judiciary towards pro se litigants and how it

affects their treatment of those litigants.

I don’t know how to say this politely, but after re

viewing the affidavit in support of appellant’s Rule 59

motion and reading the district court order, it does not

appear that the district court judge even read appel

lant’s affidavit in support before deciding the motion.

The members of this court have access to both docu

ments and certainly will make their own determina

tions in this regard. But appellant views both rulings

of the lower court in the instant action as prime exam

ples of how it is virtually impossible for a pro se litigant

to receive justice in Federal court. Hundreds of times

during his legal career appellant has read cases with

judges criticizing and bemoaning the use of conclusory

statements in complaints. But how much worse is the

use of conclusory statements in judicial opinions?

In each of the two related actions that appellant

has brought in a futile attempt to receive relief from

this police harassment, the district court opinion dis

missing the plaintiff’s complaint contains approxi

mately one dozen material misstatements of fact or

material omissions of fact. See, e.g., appellant’s brief on

appeal, Point II, This is Jurisprudence?; appellant’s

brief on appeal in the first action 15-629, Point IV, The

District Court Misapplied the “Plausibility” Standard,

pp. 22-29.

Here are two examples of this, as seen through the

lens of appellant’s briefs, respectively, from each of the

two appeals in those actions. From appellant’s brief in

the instant action, Point IV:

“In its examination of appellant’s claims against

Mayor Bill de Blasio, for example, the court below

claimed that appellant’s complaint failed to meet the

required standard under Monell v. Dep’t ofSoc. Servs.,

436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) be

cause “Plaintiff does not allege any facts showing how

Mayor de Blasio . . . was personally involved in the

events underlying his claims.” (Op. at 6; A17).

In particular, the lower court cites Second Circuit

authority stating that actionable personal involve

ment, inter alia, may consist of: “ . . . (2) the defendant,

after being informed of the violation through a report

or appeal, failed to remedy the wrong, (3) the defend

ant created a policy or custom under which unconsti

tutional practices occurred, or allowed the continuance

of such a policy or custom, [ . . . ] or (5) the defendant

exhibited deliberate indifference to the rights of [the

plaintiff] by failing to act on information indicating

that unconstitutional acts were occurring.” Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

As appellant noted in his complaint and as the

lower court quoted in its opinion, in this action the

‘“persistent police stalking and harassment that I com

plained about in my action before Judge Falla [sic.]

have continued until the present day in a significantly

increased manner’ Compl. % 162.” (Op. at 3; A12).

Mayor Bill de Blasio was served with a verified

complaint in that first action before Judge Failla on

May 6, 2014 (Docket #4), and was represented by his

attorney, the Corporation Counsel, for the entire two

year pendency of the litigation.

Personal service upon a defendant of a verified

complaint complaining of a wrong, as well as service of

a verified amended complaint, apparently does not

constitute adequate notice under Colon for the lower

court, nor for it apparently does the five year failure to

rectify the wrong after notice implicate liability under

Colon, but appellant would respectfully note that this

is error. Okin v. Vill. of Cornwall-on-Hudson Police

Dep’t, 577 F.3d 415 (2d Cir. 2008); Vann v. City of New

York, 72 F.3d 1040,1049 (2d Cir. 1995).

From appellant’s brief on appeal in the first action

commenced before Judge Failla, pp. 24-25:

“•

“The process server Plaintiff employed in

this litigation, which experienced certain

non-fatal difficulties with serving the

Complaint.” (Op. at 17; A27).

o The process server in question was Robert

Lawson, a process server doing business as

Lawson Legal Services. As is set forth more

fully in appellant’s Show Cause Affidavit

(docket # 8; A66) (incorporated by reference)

and amended complaint, paragraph 34 (A589), after being sent an email addressed to

“Mr. Naughtiness,” “[pllaintiff was emailed

two separate sets of affidavits that clearly

were insufficient: the first set because it

stated the process server had served the de

fendants on April 29,2014, whereas the sworn

to date contained in the jurat was April 1,

2014 . . . [t]he second . . . since instead of a

proper jurat, the sworn to date was simply

stamped.” (Show Cause Affidavit, <][ 7 (Dkt. #8;

A68)). Mr. Lawson then falsely told appellant

that the corrected affidavit had been mailed

when it was not mailed until three days later,

(Show Cause Affidavit, 1 9 and Exhibit 4; A68)

which meant that appellant would have re

ceived it after the 120 day limit for filing proof

, of service, [footnote omitted].”

To flesh out the situation for this court from that

rather dense paragraph, the situation was that be

cause of the problems with this process server, and

appellant’s mistaken belief that service before the

deadline without immediate filing was acceptable,

Judge Failla issued an Order to Show Cause as to why

appellant’s complaint should not be dismissed, which

appellant successfully opposed through a “show cause

affidavit.” However, in spite of the fact that the actions

of the process server in question, Lawson Legal Ser

vices, caused the court to issue an Order to Show

Cause that nearly resulted in appellant’s complaint be

ing dismissed, and in spite of the fact that appellant

submitted sworn testimony of the inexplicable lies

and prevarications of the process server principal,

Robert Lawson, including the famous “Mr. Naughti

ness” email, rather than find the clear violation of ap

pellant’s constitutional right to court access that such

behavior represents, Judge Failla simply characterized

the whole episode, quoted above, as “certain non-fatal

difficulties with serving the complaint.” So the fact ap

pellant was successful in opposing this blatant attempt

to prevent him from asserting his claims in Federal

court means that it is not actionable? Hopefully this

type of jurisprudence will never transfer to the crimi

nal side of the court, or we’ll hear about attempted

murder convictions being set aside because they are

based solely on “certain non-fatal injuries.”

It will be noted that what is going on, in both this

example and the example appellant cited earlier in

connection with the discussion of his Rule 59 motion,

are repeated attempts to prevent a party with a Fed

eral claim from properly prosecuting that claim in Fed

eral court. Further, probative evidence of this behavior

was submitted to the presiding district court judge in

each of these two actions, only to have it completely ig

nored. This judicial behavior cannot be considered

merely an accident or a coincidence, since in the first

action the district court action was reviewed and

sanctioned by an appellate panel. Given the fact that

it obviously doesn’t bother Federal judges when the po

lice blatantly interfere with the prosecution of Federal

civil rights actions, this question poses itself: Do the

members of the Federal judiciary have no self respect,

or is it that they just don’t care?

The reasoning and rulings of the lower court

herein are typical of the treatment a pro se litigant re

ceives in Federal court and point to a persisting, mate

rial defect in current Federal jurisprudence. What the

members of the Federal judiciary have created is a selfreferential system that does not need a foundation in

factual reality to survive. Appellant understands the

Federal judges involved in these behaviors are not act

ing from improper personal desires but on the contrary

are engaging in a desperate attempt to save an over

whelmed judicial system. But, as it says in appellant’s

brief, altruistic corruption is still corruption. In partic

ular, the blatant incompetence that generally accom

panies rampant corruption has been amply present in

every one of these actions.

In appellant’s career as a pro se litigant, spanning

approximately twenty-five years and involving three

actions and nine different Federal judges, justice has

yet to be rendered. It is respectfully suggested that the

members of this court turn the lens they usually focus

on other government actors upon themselves, and an

alyze their own actions for equal protection, First

Amendment, and due process violations. Indeed, the

very concept of memorandum opinions and decisions

seems to constitute an equal protection and due pro

cess violation.

As noted above, while appellant believes that the

members of the Federal judiciary have created an “ur

ban myth” that views the practice of issuing memoran

dum opinions as a necessary evil that does no real

damage, the reality is not that. The truth is that mem

orandum opinions and decisions are used to sanitize

indefensibly irrational reasoning and pathologically

shoddy jurisprudence.

Put another way, Federal judges currently are not

doing the job for which they swore a solemn oath. It is

time to change that. Long term, this will involve scary,

substantive modifications to the way cases are liti

gated. The current eighteenth century system of Fed

eral jurisprudence is incapable of handling the current

twenty-first century volume of cases. That is why the

current untenable situation obtains. It’s not primarily

the fault of the pro se litigants, as many members of

the Federal judiciary apparently believe.

Short term, the practice of employing memoran

dum decisions and opinions needs to be sharply cur

tailed. They have promoted a type of lazy, incompetent

jurisprudence that lies far below any acceptable stan

dard of justice.

In addition, and I’m not even sure this is possible,

but somehow Federal judges need to look inside them

selves and change what is there. While appellant in his

complaint uses the term “visceral hatred” to describe

the current judicial attitude towards pro se litigants

(Complaint %% 8,10; A42-44), the attitude actually is

analogous to the “but they are inferior” form of racism.

One thing is clear from appellant’s experience: Federal

judges currently are not seeing the pro se litigant as he

really is, and they are not responding to his claims with

rational arguments.

This is the United States of America. I am an

American senior citizen who has repeatedly been de

nied his constitutional rights not just by the police, but

also by multiple members of the Federal judiciary. En

banc consideration of appellant’s appeal would be an

important first step in understanding this serious

problem with Federal jurisprudence, so that eventu

ally it may be solved.

CONCLUSION

Appellant respectfully requests that this court

grant his petition for an en banc hearing of his appeal

on the ground that his appeal raises questions of ex

ceptional importance.

Respectfully submitted,

Neil McNaughton

Plaintiff-Appellant Pro Se

10 West 15th Street, Apt. 418

New York, New York 10011

(212) 675-1110

II.

PORTIONS OF BRIEF SUBMITTED TO THE

SECOND CIRCUIT

The following reproduced portions were taken

from appellant’s brief on appeal to the Second Circuit.

Nothing has been altered in these portions except cita

tions to the record have been changed to refer to this

petition’s appendix, and certain case citations have

been cleaned up.

The first portion describes some of the many omis

sions and misstatements of material facts contained in

the district court opinion in this action. The quote from

the district court opinion is followed by quotes from the

complaint herein that either belie the truthfulness of

the district court’s statement, or show that the district

court statement improperly omitted reference to a

properly pleaded fact. Here is that portion:

POINT II

THIS IS JURISPRUDENCE?

The District Court Opinion

“The crux of Plaintiff’s 74-page com

plaint ... is that the NYPD is enlisting par

ents and their children in an elaborate

scheme to lure him to commit pedophilic

acts.” Op. at 2. (All) (emphasis supplied).

The Complaint

“In the early stages of this harassment,

the participants could argue that they were

intending to “test” or “trap” the suspected

pedophile, because the girls always ap

peared to be alone . . . But because a baby in

a stroller is always pushed by a parent or a

nanny, there can be no argument that this

behavior is anything but blatant harass

ment.” (Com. ‘H 65; A67-68) (emphasis sup

plied).

[Regarding t]he facts pertinent to the in

stant action . . . [m]ost important of these

is the apparent attempt by my late sister

to lure me up to Worcester, Massachu

setts where she lived in order to entrap

me. (Com f 97; A77) (emphasis supplied).

Nor has the police interference with

my judicial proceedings been limited to

corrupting court personnel. . . . numer

ous attempts to interfere with my ability

to notarize affidavits . . . (Com. f 13; A45)

(emphasis supplied).3

Certainly the repeated unlawful in

cursions into my apartment that I describe

below . . . (Com. f 15; A46) (emphasis sup

plied).

At this point in time a member of the

police or someone at their behest was

routinely entering my apartment at

night when I was sleeping and deleting pic

tures I had taken with my camera . . . (Com.

3 For additional recent evidence of this wrong, the court is

directed to appellant’s Rule 59 motion, II 28-30. (A36-37).

f 90; A73-74) (emphasis supplied). See also,

appellant’s Rule 59 Affidavit M 5-9 (A95-96).

As a result of this lack of personal se

curity ... all of the half dozen letters

from my sister to me that I had kept have

gone missing. File documents from the pro

bate proceeding for my sister’s will have gone

missing, as have other documents. . . . (Com.

*1 92; A74) (emphasis supplied).

Of course, some of the most im

portant evidence that has gone missing

over the years are the pictures of police

cars and cops who have been stalking

me. (Com. 95; A76) (emphasis supplied).

THE PROBLEM WITH EVIDENCE

(Com. at 28, Com. ff 90-96; A73-77).

“[0]ne of the claims made in the instant action is

that the police have been interfering with my

right to choose legal counsel, as is set forth in more

detail below. (Com. f 13; A45) (emphasis supplied).

B. The District Court Opinion

“Plaintiff’s defamation claims are

based on his assertion that “the presence

of the young girls or, more recently, stroller

stalkers is a public accusation that [he is] a

pedophile,” and that “the NYPD or someone at

their behest are ... arranging phony ‘traps’

with underage children or babies in strollers,

and these ‘traps’ are understood by the

store employees to state that [Plaintiff]

is a pedophile.” (Op. at 5, fn. 5; A14) (empha

sis supplied).

B. The Complaint

“A few months ago, a Caucasian gentle

man stalked me where I was sitting in the

northeast corner of the park where I usually

sit for two days . . . This gentleman also

called me a “sexual predator” three

times during our encounter, in the hear

ing of Park police officer Henchi.” (Com.

'll 186; A109) (emphasis supplied).

“In the letter, [defendant] Bellino stated

that “As it was shared with me, you took

photographs of her two children while

she was doing the laundry.” [ . . . ] This

letter at the least was published . . . (Com.

159-160; A97) (emphasis supplied).

See also, Appellant’s Affidavit in Support of Motion

Pursuant to Rule 59, 'H'ft 10-11 (A-30-31).

C. The District Court Opinion

[T]he representation of a defendant

by counsel in state proceedings does not

constitute the degree of state involvement or

interference necessary to establish a claim

under Section 1983 . . . (Op. at 8; A19) (em

phasis supplied).

C. The Complaint

The behavior of Criscione .. . cannot

be explained simply as a result of greed

and incompetence. (Com. *1 128; A85) (em

phasis supplied).

There are a number of other acts and

failures to act by Criscione during the

period of representation that in 20-20

hindsight make clear Criscione’s hostility to

wards me . . . and the sabotage of a plan to

provide me with further evidence. (Com.

<1I 134; A87) (emphasis supplied).

D. The District Court Opinion

As defendants . . . [all private party de

fendants named] are private parties who

do not work for any state or other gov

ernment body, Plaintiff fails to state a claim

against these Defendants under Section 1983.

(Op. at 8; A19) (emphasis supplied).

D. The Complaint

The actions of the defendants named

herein were designed and did deprive plain

tiff of his rights under the Constitution of

the United States to be free from unrea

sonable search and seizure, to express

his thoughts without retaliation, and his

rights to privacy and due process. (Com.

f 200; A115) (emphasis supplied).

[T]here could be no possible explana

tion for what went on other than that my

sister and Lee were trying to entrap me

. . . (Com. 101; A78) (emphasis supplied).

"... defendants Bellino and Golub

. . . both knew of and supported the re

cent incident of trespassing on June 6,

2020 . . . (Com. ff 153; 175-180; A94; A105107) (emphasis supplied).

[T]he repeated unauthorized incur

sions into my apartment by the co-op

support staff over the years initially merely

constituted trespassing and burglary and re

lated wrongs and torts, but since the police in

volvement, their activities at the behest of

the NYPD . . . now are done under color

of state law. (Com. 203; A116) (emphasis

supplied).

The second portion of the brief sets forth reproduc

tions of relevant legal arguments from petitioner’s

brief:4 Here is that portion:

4 Word count limitations prevent the petitioner from includ

ing in this petition the point in his brief on appeal concerning the

district court’s refusal to grant petitioner the opportunity to

amend his complaint. The complaint has some serious faults, for

which petitioner apologizes. Omitting the petitioner’s analysis in

the Preliminary Statement of the defendants’ behavior as a social

pathology reduces the potential for understanding this patholog

ical behavior, but also removes any justified objection to the com

plaint on legal grounds. Thus, the district court’s refusal to grant

leave to amend is a clear abuse of discretion under established

Second Circuit standards. Ronzani v. Sanofi, 899 F.2d 195 (2d Cir.

1990). See also Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.

POINT III

IS THIS JURISPRUDENCE?

B. The Ostrich Jurisprudence Practiced

by the Lower Court Does Not Diminish

the Validity of Appellant’s Claims Un

der the Fourth Amendment

The practice of ostrich jurisprudence, where the

judge buries his head in the sand and ignores the fac

tual evidence contained in the complaint before him

when making a ruling, often by misstating it, seems to

be the preferred method for the adjudication of pro se

claims in the Southern District of New York. See, e.g.,

Point II, supra. Obviously, if a court ignores repeated

truthful allegations that illegal intrusions have been

made to a party’s dwelling, it will not see any violations

of that party’s Fourth Amendment rights.

“A ‘seizure’ triggering the Fourth Amendment’s

protections occurs [. . . ] when government actors have

‘by means of physical force or show of authority ... in

some way restrained the liberty of a citizen.’ Terry v.

Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968).” Graham v. Conner, 490 U.S. 386, 395

n.10, 109 S.Ct. 1865,104 L.Ed.2d 443 (1989). In mak

ing a determination of whether a valid Fourth Amend

ment claim is presented, “the inquiry is necessarily

case and fact specific and requires balancing the na

ture and quality of the intrusion on the plaintiffs

Fourth Amendment interests against the countervailing

222 (1962); Cruz v. Gomez, 202 F.3d 593, 597-8 (2d Cir. 2000);

Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).

governmental interests at stake. Amnesty Am. v. Town

ofW. Hartford, 361 F.3d 113,123 (2d Cir. 2004).” Tracy

v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2006).

In the first action, the district court neglected to

properly describe the deletion of emails from appel

lant’s Yahoo! account, but as a warrantless search it

clearly is a violation of appellant’s rights under the

Fourth Amendment. See Riley u. California, 573 U.S.

373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (cell

phones); United States v. Warshak, 631 F.3d 266, 288

(6th Cir. 2010) (emails).

In this action, the repeated illegal, warrantless in

cursions into appellant’s apartment for the purpose of

stealing or destroying evidence in appellant’s posses

sion or for harassing him also are clear Fourth Amend

ment violations. Arizona v. Gant, 556 U.S. 332,338,129

S.Ct. 1710,173 L.Ed.2d 485 (2009).

C. Appellant’s First Amendment Rights Have

Been Violated in Oh So Many Ways

From January of 2013, when appellant’s police

harassment increased significantly after appellant

filed his CCRB complaint, until October 28, 2020,

when a notary furnished appellant with two defec

tive notarizations (Rule 59 Affidavit %% 28-30; A36-37),

the NYPD has violated appellant’s First Amendment

rights in an impressive demonstration of different ac

tionable styles.

First, we have the numerous attempts to interfere

with appellant’s ability to file affidavits. See, e.g., Ap

pellant’s Rule 59 Affidavit (A27-38) for examples of the

two most recent, but there are many others. This con

stitutes a clear First Amendment violation. Dougherty

v. Town of N. Hempstead Bd. of Zoning Appeals, 282

F.3d 83, 91 (2d Cir. 2002) (right to petition the courts

and administrative bodies is protected).

The next violation of appellant’s First Amendment

rights is alluded to above: in destroying much of the

evidence that had accumulated, the police have se

verely hampered appellant’s ability to successfully

bring a civil action, to file a criminal complaint, to at

tract media attention, and to obtain legal counsel. In

part appellant here is alleging an “access to court”

cause of action. Cf. Graham v. Perez, 121 F. Supp.2d

317,323-24 (S.D.N.Y. 2006) (to assert an access to court

claim, a plaintiff must show that defendant “took or

was responsible for actions that hindered [a plaintiff’s]

efforts to pursue a legal claim”). See also, Acevedo v.

Surles, 778 F. Supp. 79 (S.D.N.Y. 1991).

As a third violation of appellant’s First Amend

ment rights, a number of courts have held that police

stalking in response to a plaintiff’s exercise of his or

her First Amendment rights states an actionable claim

under §1983. See, e.g., Doe v. City of Hartford, 2004 U.S.

Dist. LEXIS 9824 (D. Conn. 2004) (stalking by police

officer in response to filing criminal complaint against

him constituted actionable retaliation in violation

of plaintiff’s First Amendment rights under §1983);

Marczeski v. Brown, 2002 U.S. Dist. LEXIS 22806

(D.Conn. 2002) (same).

One reason for these holdings is the intrusive na

ture of stalking itself. As the court in Champagne v.

Gintich, 871 F.Supp. 1527 (D. Conn. 1994) wrote in

finding that stalking by police in retaliation for filing a

court complaint constituted a violation of plaintiff’s

First Amendment rights under §1983, quoting Judge

Douglas Lavine in State v. Culmo, 43 Conn. Supp. 46,

52-53 (Conn. Supp. 1993):

“Providing protection from stalking is at the

heart of the state’s social contract with its cit

izens, who should be able to go about their

daily business free of the concern that they

may be the targets of systematic surveillance

by predators who wish them ill. The freedom

to go about one’s daily business is hollow, in

deed, if one’s peace of mind is being destroyed

and safety endangered by the threatening

presence of an unwanted pursuer.”

As someone who sees a police car or a stroller

nearly every time he leaves his building’s Fourteenth

Street door, appellant could not agree more with Judge

Lavine’s assessment. Why don’t Federal judges agree?

D. The Actions of the City Defendants Vio

lated Appellant’s Right to Due Process in

Two Different Ways

An additional actionable §1983 cause of action

contained in appellant’s complaint involves the due

process clause of the Fourteenth Amendment. This

claim is independent of appellant’s retaliation claim,

and involves the fact that for years the NYPD has been

defaming appellant, which defamation then resulted

in appellant being stalked almost every time he left his

apartment by civilian vigilantes (Com. 7; A42).

Thus, plaintiff’s cause of action herein meets the

requirement the Supreme Court states in Paul v. Da

vis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405

(1976) that the plaintiff “point to some material indicum of government involvement beyond the mere pres

ence of a state defendant to distinguish his or her

grievance from the garden-variety defamation claim

In Doe v. Dep’t of Pub. Safety ex rel Lee, 271 F.3d

38 (2d Cir. 2001), rev’d on other grounds sub nom.

Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct.

1160, 155 L.Ed.2d 98 (2003), this court used a similar

analysis to determine that Connecticut’s sex offender

registration law was unconstitutional, since it involved

the state’s public defamation of the plaintiff without

an opportunity to contest, and imposed the burden of

registration.5 In the instant action, the state imposed

burden was not registration, but rather that virtually

5 It will be noted that the grounds upon which the Supreme

Court reversed the decision was that the list simply constituted a

list of convicted felons. Here, appellant not only has never been

convicted of any crime, but after nine years of “investigation”, he

has never even been charged with any crime, yet the police still

are engaging in this behavior.

every time the plaintiff leaves his home he is stalked

by civilian vigilantes. (Com. f 7; A42).

In addition, defendants’ interference with appel

lant’s access to the courts, in addition to stating a valid

claim under the First Amendment, also states a valid

claim under the Fourteenth Amendment. “As to plain

tiff’s constitutional right of access to the court, it is

well-settled that the due process clause of the Four

teenth Amendment protects an individual’s right of ac

cess to the civil courts, e.g., Chambers v. Baltimore &

Ohio R.R., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143

(1907); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct.

780, 28 L.Ed.2d 113 (1971), and a deprivation of this

right is actionable under §1983.” [citation omitted].

Woodward u. Mennella, 861 F. Supp. 192,198 (E.D.N.Y.

1994). See also Logan v. Zimmerman Brush Co., 455

U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265

(1982); Wolfv. McDonnell, 418 U.S. 539, 94 S.Ct. 2963,

41 L.Ed.2d 935 (1974).

The third portion of petitioner’s brief attempts to

address what petitioner sees as an egregious error con

sistently committed in the judicial application of the

plausibility test this Court set forth in Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007): conflating the facts with the infer

ences, and then denying the whole bundle as “implau

sible,” when the facts are well pleaded and otherwise

cannot be explained away. This practice violates Erick

son v. Pardus, 551 U.S. 89,127 S.Ct. 2197,167 L.Ed.2d

1081 (2007). Here is that portion:

POINT V

FACTS, LIES AND INFERENCES

One of the more disturbing aspects of appel

lant’s interaction with the members of the

Federal judiciary in the context of these two

related actions is the apparent collective in

ability of the Federal judges to distinguish

between facts and inferences, and the con

comitant inability to differentiate between ju

dicial challenges made on the basis of the

“plausibility” of inferences as opposed to judi

cial challenges where the judge is basically

disputing well pled facts and saying that the

pro se litigant is a liar. As appellant’s com

plaint states:

“[WJhile both the district court and the appellate

court found my inference implausible that the police

were causing the repeated phenomena that my undis

puted eye witness testimony contained in my verified

amended complaint had established, at no point did ei

ther court attempt to provide an explanation of how I

could be seeing these repeating phenomena every sin

gle day. In effect, both found my sworn eye witness tes

timony of multiple police cars and underage girls

implausible.” (Com. 1 7; A42).

This defect in judicial thinking and analysis will

be analyzed in the context of the lower court’s dismis

sal of appellant’s claim against defendant attorney

Galen Criscione. (Com. M 104-136, 199-201, 215-218;

A79-87,114-115,119-120), and then applied more gen

erally.

These are the most important facts and inferences,

respectively, that underlie appellant’s claims in the in

stant action against Criscione:

Facts

• Criscione agreed to take appellant’s case

for $20, 000. (Com. fill; A81)

• Criscione was told that to obtain the rele

vant telephone records was the most im

portant part of the action. (Com *}[ 109; A8081).

• Appellant mistakenly gave Criscione erro

neous telephone numbers to check. (Com.

*R105; A79-80).

• Criscione told appellant he had checked

the numbers and they were correct. (Com.

*11113; A82). This is a fact and also a lie (and

that conclusion is an inference).

• Criscione changed the period requested on

the second set of telephone records from what

appellant had instructed him to request.

(Com. *j[126; A85).

• None of the telephone records Criscione

obtained contained the records for the period

appellant was seeking. (Com 127; A85).

• The action appellant brought was barred

because long arm jurisdiction over the defend

ants currently could not be established under

New York law, and Criscione failed to inform

appellant of that fact (Com. *j[ 120; A83).

• Criscione submitted to appellant a draft

complaint intended for verification that if ap

pellant had signed would have constituted

perjury under New York law. (Com.

129130; A85-86).

Inferences

• Criscione knew appellant’s action was

barred in New York State under New York

law. (Com. f 136; A87).

• Criscione never intended to obtain the tel

ephone records for appellant. (Com. ^[136; A87).

• Criscione intended to defraud appellant.

(Com. ^[217; A120).

• Criscione was working for the police.

(Com. ^216; A120).

• Criscione was attempting to harm the ap

pellant by inducing him to perjure himself.

(Com. fll28;A85).

As one can easily see, the facts listed above, if

truthful, clearly establish attorney malpractice and

fraud. Also, most of the inferences follow as a matter of

course from the facts. The one inference that might be

questioned is the one claiming that Criscione was

working for the police. However, certain of Criscione’s

actions can be explained no other way. Simple greed or

incompetence could explain Criscione’s accepting ap

pellant’s money knowing that his claim could not be

brought in New York State. But Criscione’s shenani

gans concerning the subpoenas cannot be explained

solely as a consequence of his greed or incompetence,

since failing to properly serve the subpoenas actually

caused him to do more work than he otherwise would

have been required to do. More importantly, there is no

reason for him to fail to obtain the telephone records,

particularly if he was defrauding appellant. If you

were an attorney bent on taking a client’s $20,000

for instituting an action that properly could not be

brought, wouldn’t you try to do everything possible to

make that client happy, since you knew that the com

plaint was going to be dismissed? A rational sleazy at

torney would be worried about a malpractice action

and possible disciplinary complaints. Moreover, the ap

parent attempt to lure appellant into committing per

jury (Com.

128-130; A85-86) makes no sense unless

Criscione was actively trying to harm appellant.

Without making the inference that Criscione was

working for the police, one cannot make sense of the

facts. If someone disputes this conclusion, the onus is

on them to provide another inference that will explain

this puzzling behavior. Absent such other inference,

since it has been established, at least for the purposes

of deciding a motion to dismiss, that there was some

kind of agreement between Criscione and the police,

and since many overt acts were performed that vio

lated appellant’s constitutional rights, the three prong

test of state involvement this court established in

Ciambriello v. County of Nassau, 292 F.3d 307, 324-25

(2d Cir. 2002) and McGee v. Doe, 568 F. App’x 32, 35

(2d Cir. 2014) has been satisfied, and appellant’s

amended complaint states a valid cause of action

against defendant Gavin Criscione.A similar analysis

can be made for named attorney defendant David L.

Moss (Com. ^[f 141-146; A89-91), who recently made a

cameo appearance before this court. There is simply no

reason for him not to find the private detective to do

the fingerprint work. He makes more money if he does

so. The behavior of attorney Heather A. Ticotin (Com.

M 139-140; A88-89), who was not named as a defend

ant but who is part of the fact pattern of police harass

ment alleged in appellant’s complaint, also cannot be

explained without reference to some other factor that

is not normally present. Attorneys don’t normally hold

a conversation with a prospective client indicating

probable representation and then refuse to speak to

him again. The inference appellant has drawn from ab

errant behavior of these attorneys is that it is evidence

of police involvement. Anyone who wants to explain

the aberrant behavior of these attorneys as evidence of

something else is welcome to try.

Finally, the behavior of the Co-op defendants,

whose support staff have been stealing evidence from

appellant’s apartment for several years (Com. ^203;

A116), also cannot be explained without pointing to the

police. Why else, for example, would the support staff

steal letters from appellant’s sister (Com. f92; A74), or

even know Of them or bother to look for them?

Again, the typical judicial response appellant has

received to questions like this is the one Judge Failla

gave in the first action when appellant claimed he was

missing emails from his apartment:

“[T]he factual underpinnings of this

[Fourth amendment] claim-that the NYPD,

over a protracted period of time, monitored

Plaintiff’s telephone and computer, and re

peatedly broke into [appellant’s] apartment,

each time without leaving a hint of their in

trusion-are plainly implausible.” (First action:

Op. at 27; Appendix at 37).

In other words, Judge Failla discounted (and in

fact misrepresented) the sworn testimony of the plain

tiff involving those incursions and his later testimony

about stolen emails and explicitly claimed that the

plaintiff’s factual testimony was implausible. To which

appellant can only respond: “In an era where Twombly

and memorandum decisions and summary orders rule,

this means that as a practical matter that “justice” in

Federal court for a pro se litigant rests upon the Polyanna delusions of a pampered privileged member of a

powerful establishment elite.” (Com. ^[ 56; A64).

Of course, Judge Failla’s opinion was written be

fore Black Lives Matter and the murder of George

Floyd. Perhaps she would have a different opinion of

plausible police action today.

III. Ich bin nicht der Mund fur disen Ohren

After having read the portions of petitioner’s brief

submitted to the Second Circuit herein in the preced

ing pages, the reader is respectfully requested at this

point to immediately go read the summary order the

Second Circuit panel wrote in response. (Al-4).

I’m not the mouth for these ears. That is the con

clusion petitioner must draw after having submitted

the above arguments to the Second Circuit, only to

have every single argument ignored.

While the repeated failure of the district court

noted above to properly describe and address the fac

tual predicates and claims contained in petitioner’s

complaint is shocking, the treatment by the district

court of petitioner’s Rule 59 motion (A25-38) is worse.

Petitioner provides physical proof of interference with

his ability to prosecute his Federal action (the defective

notarizations) (Affidavit f 28 and Exhibit 5 (A36), and

sworn statements supported by physical evidence of

repeated illegal incursions into his apartment as well

as the destruction or stealing of evidence (Affidavit,

n 5-6) (A28).

The district court wrote in response “As Plaintiff

presents no valid grounds for reconsideration, the mo

tion is DENIED.” (A7-8). The district court then quotes

language from a case that has absolutely no relevance

to petitioner’s motion, since petitioner’s motion does

provide probative new evidence of his claims not avail

able to the court at the time it dismissed petitioner’s

complaint sua sponte.

The appellate panel deciding this issue was no bet

ter. It will be noted, from the lengthy legal points of his

appellate brief that petitioner quotes, that petitioner is

dutifully arguing the application of established legal

standards to the facts of his case. By contrast, in every

single determination by a member of the Federal

judiciary in this action, there is absolutely no discus

sion concerning the application of the relevant legal

standards to the facts pleaded in the complaint. There

is simply the mindless recitation of undisputed legal

standards that have no application to the instant ac

tion. Yes, private parties acting alone cannot be held

liable in an action brought under 42 U.S.C. section

1983, for example, but why is the support staff of my

building stealing every single letter I kept that my sis

ter ever wrote to me? How do they even know that

these letters exist? Why are pictures I took of police

officers and police cars disappearing from one of my

computers that is not connected to the internet?

The failure of the Federal judges herein charged

with the responsibility to determine the validity of pe

titioner’s pro se complaint to even address these issues

is the failure of America’s Federal system of civil jus

tice. The question petitioner posed at the start of his

petition to the Second Circuit for en banc consideration

must regrettably be answered in the affirmative.

CONCLUSION

For the foregoing reasons, the Court should grant

a writ of certiorari.

Respectfully submitted,

Neil McNaughton,

Petitioner Pro Se

10 West 15th Street, Apt. 418

New York, New York 10011

(212) 675-1110

December 28, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.