Petition for Writ of Certiorari — Rian G. Waters, Petitioner v. Facebook, Inc., et al.

Supreme Court briefJul 14, 2022

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SUPREME COURT OF THE UNITED STATES

original

Supreme Court, U.S.

FILED

JUL 1 4 2022

RIAN G. WATERS,

No.

OFFICE OF THE CLERK

Plaintiff - Applicant,

FACEBOOK, INC.; GOOGLE LLC; AIDAN KEARNEY,

Defendants - Respondents,

KATHERINE PETER; JEREMY HALEY; MARTHA SMITH-BLACKMORE;

WILLIAM HIGGINS; JIM DALTON; MAURA TRACY HEALEY; JOHN DOES

(1-10),

Defendants.

PETITION FOR WRIT OF CERTIORARI RELIEF

Respectfully submitted,

Pro se /S/ Rian Waters dated July 14, 2022

199 Allen St E. Longmeadow MA 01028

(530)739-8951

Watersrian@gmail.com

QUESTIONS PRESENTED:

1) Whether plaintiffs and witnesses have a right to receive protection from

obstructive crimes while a case is proceeding in federal courts of justice?

2) Whether it is a violation of the constitutional right to due process for the First

Circuit to raise issue preclusion to dismiss an appeal of a District Court’s sua sponte

dismissal that was also without notice and with prejudice.

RELATED PROCEEDINGS

Waters V. Facebook Inc. et al 3:20-cv-30168 Mass. US District Court. Judgment

issued 5/11/2022

Waters v. Facebook, Inc., et al 0:21-civil-01582 First Circuit. Second injunction and

En Banc reconsideration denied February 14th 2022

Waters v. Facebook, Inc., et al 0:22-civil-01054 First Circuit. Defendant mooted the

appeal by identifying the witness.

Waters V. Kearney, 2223A000803 Springfield (state) District Court Magistrate

denied probable cause 06/01/2022, redetermination pending.

Table of Contents

QUESTIONS PRESENTED:

RELATED PROCEEDINGS

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

OPINIONS BELOW

JURISDICTION

STATEMENT OF THE CASE

Summary of my argument

Factual and Procedural Background of Obstruction:

June 18th 2022 threats and relevant but unpreserved facts

Factual background of the case.

REASONS FOR GRANTING REVIEW

The Proceedings were fundamentally unfair

The defendants intentionally impaired me

I was never meaningfully heard

Constitutional Duty To Protect Participants:

This court should ask the US Attorney’s Office to investigate.

The Decision conflicts with 4th, 5th, 6th, 7th, and 9th Circuits

The precluded issues have merit

Section 1983 Common law causation

My state Action theories have merit

Public shaming on social media is a weapon

The Lower Court’s reason for issue preclusion is hypocritical

CONCLUSION

Certificate Of Service

Constitutional Provisions

First

Fourteenth Amendment

Massachusetts Constitution 48, Init., Pt. 2, § 2

Ninth Amendment.

First Circuit Cases

Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001)

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989)

Irizarry v. Quiros, 722 F.2d 869, 872 (1st Cir. 1983)

Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 30 (1st Cir. 2015

U.S. v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997

U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

United States v. Gray, 780 F.3d 458, 464 (1st Cir. 2015)

Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 191 (1st Cir. 2004)

Supreme Court Cases

Adickes v. Kress Co., 398 U.S. 144, 152 (1970)

Aikens v. Wisconsin, 195 U.S. 194, 205-206 (1904)

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 392 (1971)

Boddie v. Connecticut, 401 U.S. 371, 377 (1971)

Bridges v. California, 314 U.S. 252, 261 (1941)

Burt v. Titlow, 571 U.S. 12, 19, 134 S. Ct. 10, 15, 187 L. Ed. 2d 348 (2013)

Carey v. Piphus, 435 U.S. 247, 266 (1978)

Castro v. U.S., 540 U.S. 375, 386 (2003)

Chambers v. Nasco, Inc., 501 U.S. 32, 44 (1991)

Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S. Ct. 2022, 2031, 29 L. Ed. 2d

564 (1971

Davis v. United States, 411 U.S. 233, 256-57 (1973)

Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016)

Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)

Gideon v. Wainwright, 372 U.S. 335, 342 (1963)

Holland v. Florida, 560 U.S. 631, 653 (2010)

Hormel v. Helvering, 312 U.S. 552, 61 S. Ct. 719, 85 L. Ed. 1037 (1941)

15, 19

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477

(1974)

Marbury v. Madison, 5 U.S. 137, 180 (1803)

Monroe v. Pape, 365 U.S. 167, 187 (1961)

Morgan v. United States, 304 U.S. 1, (1938)

Pate v. Robinson, 383 U.S. 375, 384 (1966)

Smith v. Barry, 502 U.S. 244, 248-49 (1992

Thomas v. Arn, 474 U.S. 140, 148 (1985)

Tower v. Glover, 467 U.S. 914 (1984)

United States v. Payner, 447 U.S. 727, 733 (1980)

United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211 (1915)

United States v. Tsarnaev, No. 20-443, at *14 (Mar. 4, 2022)

United States v. Wilson, 421 U.S. 309, 316 (1975)

Universal Oil Co. v. Root Rfg. Co., 328 U.S. 575, 580 (1946)

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798 (1987)

Youngberg v. Romeo, 457 U.S. 307, 323 (1982)

Other Cases

Adbul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 290 (4th Cir. 2018)

Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016)

Clodfelter v. Republic of Sudan, 720 F.3d 199, 212 (4th Cir. 2013)

Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001)

Deutsch v. Flannery, 823 F.2d 1361, 1365 n.2 (9th Cir. 1987)

Frederick v. Marquette Nat. Bank, 911 F.2d 1, 2 (7th Cir. 1990)

Hamer v. Neighborhood Hous. Servs. of Chi. , 897 F.3d 835, 838 (7th Cir. 2018).... 23

Hanshaw Enter, v. Emerald River Develop, 244 F.3d 1128, 1140 (9th Cir. 2001)... 22

Haskell v. Washington Township, 864 F.2d 1266, 1273 (6th Cir. 1988)

Lincoln Composites, Inc. v. Firetrace USA, LLC, 825 F.3d 453, 458 (8th Cir. 2016 16

Manning v. Caldwell, 930 F.3d 264, 271 (4th Cir. 2019)

Moore v. Morgan, 922 F.2d 1553, 1558 (11th Cir. 1991)

Schmidt v. Gray, 399 F. App'x 925, 926 n.2 (5th Cir. 2010)

Stanislaw v. Thetford Township , 20-1660, at *1 (6th Cir. July 19, 2021)

Teamsters, Chauffeurs, L.U. 524 v. Billington, 402 F.2d 510, 512 (9th Cir. 1968).. 23

Vll

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people. Ninth Amendment

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

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

within its jurisdiction the equal protection of the laws. Fourteenth Amendment

OPINIONS BELOW

None of the decisions were reported, but the First Circuit’s dismissal is available on

Westlaw. Waters v. Facebook, Inc., 2021 WL 6773557, (C.A.1, 2021)

JURISDICTION

The sua sponte judgment of the court of appeals was entered on December 23rd,

2021. App., infra, 3a. Re determination was denied February 14th On May 3rd 2022,

Justice Breyer extended the time within which to file a petition for a writ of

certiorari to and including Thursday, July 14th 2022. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

I argue this court has inherent jurisdiction to investigate Defendant-Respondent

Kearney’s 6/18/2022 obstructive threats that impaired my ability to file this

petition, and that took place after Justice Breyer granted an extension. Arguments

that the court should use its inherent power to investigate will nearly mirror the

ones argued in the First Circuit to investigate November 19th, 2021.

STATEMENT OF THE CASE

Summary of my argument

Had the District Court contained Aidan Kearney’s obstructive behavior, I

would have had better arguments, and I would have had more evidence available to

me, and more importantly Aidan Kearney would not have impaired my ability to

litigate the First Circuit appeal by threatening to rape and murder children in my

name on November 19th, 2021. Had the First Circuit investigated the November

19th conspiracy,

Kearney never would have threatened or extorted his

Coconspirator and confidant. Had the lower courts not silently approved of the

January 15th, 2022, threats and extortion, Aidan Kearney would not be impairing

my ability to file this brief by threatening witnesses less than a month before this

Supreme Court petition is due.

The court also never allowed me to raise my strongest arguments.

Because I never received fundamental protection, and the Lower courts never

considered my best legal arguments, I should get a fair opportunity to argue this

case with unintimidated witnesses and unintimidated representation.

Factual and Procedural Background of Obstruction:

I filed a lawsuit against Aidan Kearney for defamation in 2018 in the

Massachusetts

Superior

Court.

(1879CV0344)

Aidan

Kearney’s

consistent

harassment after court filings and before court hearings made it “too dangerous for

me to present evidence or name witnesses... and I lost the ability to make strong

written and oral arguments.” (VC 92) The Superior Court dismissed the case in

Kearney’s favor, but it was reversed in part by the Massachusetts Appeals Court,

(2020-P-0088) and remanded. In 2019 the State Springfield District Court cited

outdated elements to deny issuing a criminal complaint over Kearney’s witness

intimidation. (SAC 22)

I filed a verified complaint (“VC”) in the US Massachusetts District Court on

October 26th 2022 and I stated under penalties of perjury that I was “diagnosed with

Adjustment Disorder” and that “Aidan Kearney's articles [had] been identified as

the cause and stressor of the disorder.” (VC 88)

Kearney impaired my ability to argue on November 12th 2020 by stating the

following threat on his YouTube channel that was watchable and promoted on

Facebook; “When General Sherman marched to f****** Atlanta he lit everything on

fire, ******* everything, men women children dogs everything ******* burns until

you surrender that's how it ******* works if you want to declare war then people

******* die in war including civilians. When we bombed Hiroshima and Nagasaki

we knew that a bunch of ******* kids women are gonna die in that, too ******* bad,

then ******* surrender, ******* surrender, and then they finally surrendered didn't

they? That's what you gotta do, unfortunately there is collateral damage, so I

want to make sure the message is sent here, if you **** with me, if you try to

sue me, I'm not going to go after you, I'm going to go after your •k’k'k'k'Srk'k family,

don't **** with me, that's all I'm saying alright? I'm not playing with these people I

paid 30,000 ******* dollars in legal fees last year, the s **** not ******* cute

anymore and I'm not 'k'k'k'k'k'k'k playing defensive and hiding anymore. I'm going to

burn your family to the ground just understand that.” (SAC 79) No court has

explained why this threat is appropriate.

On December 1st, 2020, I filed a motion for an injunction in the US District

Court, noting that Aidan Kearney was making it too dangerous to have witnesses in

the Federal case, and that he was intentionally hindering my ability to litigate by

triggering the adjustment disorder that his harassment is the identified cause and

stressor of. Kearney did not oppose the injunction. The Court did not deny the

injunction until it sua sponte dismissed the entire complaint without notice on May

11th 2021, and the court did so without legal argument for the injunction aside from

likelihood of success. I asked the court to consider granting an injunction pending

appeal in my motion for reconsideration, which was denied.

On November 19th, 2021, on the same day Kearney was defaulted for not

filing in appellee brief, Aidan Kearney created a fake Facebook account in my name,

and used the account to send heinous threats directed at his own children, and then

he conspired with 2 coconspirators to frame me for sending the threats.

I reported the fake threats and fake profile to Facebook and the threats and

profile were quickly taken down. I sent Facebook’s lawyers screenshots of the crime

and I asked them to investigate. Facebook responded by deleting my Facebook

account the night before Thanksgiving, which blocked me from collecting evidence

of the fake profile that I reported.

On December 8th, 2021, I filed a motion for an injunction pending appeal in

the First Circuit, and on December 16th, 2021, I filed a motion to investigate the

November 19th, 2021, obstruction conspiracy. Facebook opposed the investigation

arguing that it was procedurally improper for an appellate court to investigate

obstruction that took place on their platform, and that I did not collect enough

evidence [before they deleted my account.] On December 23rd, 2021, the First

Circuit denied my motions without comment when the court sua sponte dismissed

the Appeal.

In January 2022 a coconspirator (Cristina Yakimowsky) gave me evidence

proving that Aidan Kearney orchestrated the conspiracy using a Facebook group

chat. Aidan Kearney threatened and extorted her on January 15th, 2022. In

response I filed a second emergency motion for an injunction pending appeal in the

First Circuit on January 21st, 2022, the, court denied that motion on February 14th,

2022, the same day that the court denied a petition for rehearing En banc.

On January 24th I filed a motion to include an affidavit and exhibits with the

second injunction motion, it was granted. The affidavit contained multiple threats

and even extortion by Kearney directed at Cristina Yakimowsky. “I hope she is

scared because she should be, cause did you forget who the 'k'k'k'k I am, and what the

•k'k'k'k

I could do? Did you hun? Did you? Are you s •k kklekk your pants yet because you

should be? What on earth would make you think, because you knew I was going to

find out, when the screenshots came out and they’re from your perspective...” at 8

“The other people I that I have gone to war with they have nothing to lose, you have

a lot to lose, you own a business... you live in a $600,000 house in Oxbridge, you

have a fiance who does not know that we talk. He is not going to like to see the

messages...” at 10. “I am going to still give you a chance to get out of this, you can

call me whenever you want, if you don’t, February 17th I will be there at your court

date.” At 11

Exhibit A contained screenshots from a Facebook group chat called #BlogDat

from November 19th, 2021, where Kearney (“Clarence” in the group chat) directed

Cristina Yakimowsky (messages in blue) to publicly direct his attention to the

threats so that it would look like he found them innocently. (Exhibit A 02-03)

Exhibit B contained screenshots from the same Facebook conspiracy group as

Exhibit A but coming from Kearney's perspective. Kearney used the screenshots to

publicly prove that Cristina Yakimowsky conspired to use his blog to intimidate a

witness in a different court case. (January 24th Affidavit at 2)

On January 31st, 2022, I successfully moved in this First Circuit to

supplement the motion again with a police report that identified the members of the

#BlogDat group chat with their real names next to their screen names, and more

importantly Aidan Kearney claimed he was the only one with access to the

Facebook account “Clarence Woodson Emerson”. He 'told the police that he was

“hacked” (I argued for plausible deniability), and he told the officers that he had

never sent messages to anyone besides himself. The officers later found out that

Kearney lied to them and that he also sent the messages to Cristina Yakimowsky in

the #BlogDat group chat, and that she was leaking his messages.

I also filed motions to impound Cristina Yakimowsky’s identity, and to hold

27B depositions, but Kearney identified the witness after I filed the appeal.

On March 09th 2022 the District Court approved of the threats and extortion

by deciding that Kearney conspiring to frame me for threats to harm his children

does not change the state action inquiry. (I never said it did.)

I filed for an extraordinary writ in this court on March 16th, 2022, Justice

Breyer denied relief on April 20th 2022 (No. 21A626)

June 18th 2022 threats and relevant but unpreserved facts

'k'k'k

These facts have only been presented in the state criminal court,

they are for inherent power review only.

Kearney told a woman named Shannon Labarre that the November 19th 2021

conspiracy was Cristina Yakimowsky’s idea, and that he was just a coconspirator

with her. To try and prove this Kearney sent Shannon Labarre a screenshot of the

. #BlogDat group chat from his perspective during the conspiracy proving that he has

access to the account that orchestrated the conspiracy.

Kearney threatened and extorted Shannon Labarre too.

On June 18th 2022, Aidan Kearney threated Cristina Yakimowsky’s several

times on YouTube, saying “I don't know why you thought this was a smart idea

Chrissy, because you know me, and you know what I do, and you know I'm not

gonna rest, you know that right? Like you own a business, I am speaking at Chrissy

right now cause I know she's listening. So you own a business, you have couple kids

or whatever, and a family, and it's called Royal Thermal View1, did you think I

wasn't gonna make it like my mission to take all that away from you? Did you think

that?” “I'm a vindictive c icick . And I'm not gonna stop, we're just beginning here. I'm

not gonna stop destroying your life, just destroying it, like I am gonna take

everything away from you that you love, I want you to feel as low as I did [when he

found out she released evidence of the November 19th conspiracy] ”***

Factual background of the case.

The Second Amendment complaint starts with claims for product design and

gross negligence. For these claims I used several facts including but not limited to;

“Facebook allowed users to provide context to violations of their rules in

January 2019, but they have since removed that feature. Facebook is deliberately

indifferent to the rights of US citizens as they do not currently provide any method

to explain why or how something is unlawful, discriminatory, or violating a person’s

rights. (SAC 50-51)

“Facebook’s

and

Google’s

platforms

are

defectively

designed

and

unreasonably dangerous because of their susceptibility to be used as a weapon

without any user support, and without any effective method to report witness

intimidation or mitigate the effects. Facebook willingly implemented a system that

allows users to create accounts under almost any name with only verifying that the

user owns an email address. If someone commits a crime with a fake name

1 Cristina Yakimowsky’s business is named Royal Thermal View.

Facebook does not make any attempt to identify the culprit, and Facebook does not

have any notable victim support.” (SAC 55-56)

Facebook and Google’s platform are defective in their respective designs

because the foreseeable risks of harm posed by the products/platforms could have

been reduced or avoided by the adoption of a reasonable alternative design.” (SAC

58)

“Google and Facebook knew or should have known that their platforms were

being routinely used to harass US citizens. Google and Facebook have failed to

adequately train their employees to respect the rights of US citizens and litigants in

court cases.”

“Facebook and Google had a duty under Massachusetts common law to

proceed in good faith, and to act with reasonable diligence to bring their litigation to

a final conclusion, and to conduct themselves with at least that modicum of civility,

courtesy and respect, for all of the parties in this case.” SAC 70

The lower court denied these allegations by dismissing the federal claims and

arguing I somehow lacked diversity jurisdiction.

I also had 1983 claims for due process and cruel and unusual punishment

violations. The idea was that Aidan Kearney learned about the criminal allegations

against me from a state agent, and he punished me for crimes without due process

with the help of police officers. The Second Amended complaint had the following

facts to support this;

“Current and former police officers have harassed and intimidated me on

Turtleboy’s Facebook and YouTube social media accounts and used Turtleboy’s

slogan ‘don’t poke the turtle’ (Exhibit B.)” (SAC 23) “Aidan Kearney sent and

received emails discussing the criminal allegations against me and or complaints

against him with multiple state agents and or police officers. (Exhibit A)” (SAC 15)

Aidan Kearney has bragged while being interviewed that he has police and

state agents in every department across Massachusetts that feed him information.

Aidan Kearney has also bragged on social media and in his book “I am Turtleboy,”

that police send him information that they do not send to the traditional media.

(SAC 16) Aidan Kearney wrote in his book that being supported and followed by

several police departments including Boston has been a big help to him growing his

audience and reach. (SAC 17) Aidan Kearney routinely harasses victims of police

corruption on his ‘weaponized’ social media account’s and portrays the victims as

culprits.” (SAC 18) I also made inaction arguments (SAC 20-22)

“YouTube and Facebook have intentionally made it difficult and or impossible

to inform them that the state was exploiting their platforms without starting a legal

action, and after receiving legal notice they have continued to support and protect

the scheme. Their acceptance can be inferred as a wink is as good as a nod to a blind

horse. For the reasons set forth above, and reasons currently unknown the

Defendants should be considered as acting under the color of the law as the

Defendants have received significant support/encouragement both overtly and

covertly, and the state has willingly accepted the benefits of the Defendants’

schemes, and the State has intentionally tolerated the illegal conduct.” SAC 24-25

At the start of the 1983 claims I “restate [d] and incorporate [d] by reference

the allegations contained in the preceding paragraphs,” including the product

design and gross negligence claims. On appeal and in the rule 60 B motion I argued

that the common law claims should hold weight for causation into 1983 claims.

The District court denied the motion to reconsider, deciding that I was not

allowed to “relitigate old matters, or to raise new arguments,” even though we had

no prior decisions on merits, and I did not have prior notice of his intent to dismiss.

I filed a Rule 60 B motion, which the District Court decided on October 12th

2021, the same day my Appellate brief was due, “[t]he court lacks jurisdiction to

hear Plaintiffs Rule 60(b) motion because of his pending appeal.” So he

recharacterized it as a Rule 62.1 motion, and described Kearney’s threats to attack

children as unflattering posts. The District court again denied relief in a conclusory

fashion without addressing half my state action facts or theories, and without

addressing my 1983 causation argument.

I filed my appellate brief in the First Circuit on October 14th, 2021, which

was accepted for filing the same day. Aidan Kearney was defaulted for not filing an

appellee brief on November 19th, 2021. The First Circuit sua sponte dismissed the

appeal after briefing was closed on December 23, 2021, by raising the following

arguments for Aidan Kearney; 1) Some unidentified issues in my pro se Appellate

brief were too perfunctory to warrant review. 2) Some unidentified issues were

precluded because I did not file an amended formal notice of appeal after the

District Court’s decision on my rule 62.1 motion.

REASONS FOR GRANTING REVIEW

The Proceedings were fundamentally unfair

A. The defendants intentionally impaired me.

I stated under penalties of perjury that I have an adjustment disorder, and that

Aidan Kearney is the identified cause and stressor of it. (SAC 38) Just because I am

still capable of producing a compliant brief, does not mean that I am fairly

presenting my arguments. It should be obvious that a pro se litigant is not being

fairly heard if the opposing party is intentionally preventing him from reasonably

sleeping at night. “Courts should not second-guess the expert administrators on

matters on which they are better informed. For these reasons, the decision, if made

by a professional, is presumptively valid” Youngberg v. Romeo, 457 U.S. 307, 323

(1982) I showed the court that adjustment disorder causes preoccupation with the

stressor and its consequences, sleep disturbances, and significant impairment in

occupational functioning. Kearney consistently exploited my adjustment disorder by

sending heinous threats when my cognitive ability mattered the most. Kearney’s

harassment and threats are “the central impediment to the pursuit of [my] legal

remedy” Holland v. Florida, 560 U.S. 631, 653 (2010) There are “fundamental

requirements of fairness which are of the essence of due process in a proceeding of a

judicial nature. Those requirements relate not only to the taking and consideration

of evidence but also to the concluding, as well as to the beginning and intermediate,

steps in the procedure.” Morgan v. United States, 304 U.S. 1, (1938) “It is

contradictory to argue that a defendant may be incompetent, and yet knowingly or

intelligently [or at least fairly in this case] ‘waive’ his right.” Pate v. Robinson, 383

U.S. 375, 384 (1966)

The heinous threats against witnesses are even worse. How could anyone argue

then I had a fair opportunity to present evidence, when a defendant consistently

threatens to destroy livelihoods of every witness that I present.

“It must necessarily be found, as an original question, that the specified

publications involved created such likelihood of bringing about the substantive evil

as to deprive [them] of the constitutional protection.” Bridges v. California, 314 U.S.

252, 261 (1941) It is possible that because of my adjustment disorder, I am affected

more by Kearney’s attempt to frame me for pedophilia threats then the District

Court would be if someone tried to frame him for pedophilia. It is important to

“consider the unique sensitivity of the recipient.” U.S. v. Fulmer, 108 F.3d 1486,

1491 (1st Cir. 1997)

B. I was never meaningfully heard

“[D]ue process requires, at a minimum, that absent av countervailing state

interest of overriding significance, persons forced to settle their claims of right and

duty through the judicial process must be given a meaningful opportunity to be

heard.” Boddie v. Connecticut, 401 U.S. 371, 377 (1971) (“What the Constitution

does require is an opportunity granted at a meaningful time and in a meaningful

manner.”)

“Supervisory rules cannot conflict with or circumvent a constitutional

provision or federal statute.” United States v. Tsarnaev, No. 20-443, at *14 (Mar. 4.

2022) see also Thomas v. Arn, 474 U.S. 140, 148 (1985)

The 10th circuit found that sua sponte dismissals with prejudice comported

with due process because there are “adequate procedural safeguards to avoid

erroneous dismissals. A litigant whose complaint has been dismissed with prejudice

could file a motion to alter or amend the judgment under Rule 59(e) or for relief

from the judgment under Rule 60(b). The litigant can also bring an appeal, in which

we conduct plenary review of the sufficiency of the complaint.” Curley v. Perry, 246

F.3d 1278, 1284 (10th Cir. 2001) “It is well established that a procedural rule that

unreasonably precludes the vindication of constitutional rights itself raises serious

constitutional questions.” Davis v. United States, 411 U.S. 233, 256-57 (1973)

The District Court prevented me from raising arguments in my rule 59(e)

motion. In the common case, issue preclusion makes sense because “the judgment

being reviewed by the Rule 59(e) judge has been entered after both parties have

argued the points at issue. Here, by contrast, the judgment being reviewed was [sua

sponte]” Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 191 (1st Cir. 2004)

“The general rule that an appellate court does not give consideration to issues not

raised below should not be applied where the obvious result would be a plain

miscarriage of justice.” Hormel v. Helvering, 312 U.S. 552, 61 S. Ct. 719, 85 L. Ed.

1037 (1941) I was not heard in a meaningful manner if I was never allowed to get a

decision on my best arguments.

While I did file a rule 60 B motion, the Lower court noted, it “lack[ed]

jurisdiction to hear Plaintiffs Rule 60(b) motion because of his pending appeal...

however, the court liberally construes [my] motion as one pursuant to Rule 62.1 for

an indicative ruling.” I did not file a formal notice of appeal because I realized if the

Lower Court’s decision held the same weight as when it had jurisdiction, than rule

62.1(a)(c) would be pointless. Since the Court of appeals never remanded for the

District Court to decide the motion, the District Court’s conclusory order could not

be considered as hearing me in a meaningful manner, and the decision should not

hold any weight as to the merits that the District court was without jurisdiction to

address. See Rule 62.1(c) “Recharacterization is unlike ‘liberal construction,’ in that

it requires a court deliberately to override the pro se litigant's choice of procedural

vehicle for his claim.” JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

concurring Castro v. U.S., 540 U.S. 375, 386 (2003)

Regardless, if necessary, I filed an informal notice of appeal in the First

Circuit on October 13th, 2021, in my “MOTION to extend time to file brief and

appendix filed by Appellant Rian G. Waters.” pg 1) The motion stated, “The lower

court ruled on my rule 60(b) motion on October 12th, 2021 at around 4:25 pm....

Amended Notice of Appeal will be filed today.” The caption of the October 13th filing

listed me the Appellant, and each of the Appellees. The Appellant brief was also

filed two days after the indicative ruling decision which is within the allotted time

to file a notice and contains the necessary information. “[T]he notice afforded by a

document, not the litigant's motivation in filing it, determines the document's

sufficiency as a notice of appeal. If a document filed within the time specified by

Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal."

Smith v. Barry, 502 U.S. 244, 248-49 (1992) (“The Federal Rules do envision that

the notice of appeal and the appellant's brief will be two separate filings... They do

not preclude an appellate court from treating a filing styled as a brief as a notice of

appeal, however, if the filing is timely under Rule 4 and conveys the information

required by Rule 3(c). Such treatment is, in fact, appropriate under Torres and

under Rule 3(c)'s provision that ‘[a]n appeal shall not be dismissed for informality of

form or title of the notice of appeal...’ Rule 4(a)(1) sets out a transmittal procedure

to be followed when the notice of appeal is mistakenly filed with an appellate court,

and provides that a misfiled notice ‘shall be deemed filed in the district court’ on the

day it was received by the court of appeals.”) Id. 249

We have “jurisdiction over [an] underlying order if the appellant's intent to

challenge it is clear, and. the adverse party will suffer no prejudice if review is

permitted.” Lincoln Composites, Inc. v. Firetrace USA, LLC, 825 F.3d 453, 458 (8th

Cir. 2016

“[T]he right to procedural due process is "absolute" in the sense that it does

not depend upon the merits of a claimant's substantive assertions, and [it is

important for] organized society that procedural due process be observed...” Carey

v. Piphus, 435 U.S. 247, 266 (1978)

Constitutional Duty To Protect Participants:

The First and Seventh Amendment's right to litigation, the Ninth

Amendment's reservation of unenumerated rights to the people, and the Fourteenth

Amendment's rights to due process and equal protection imply a concomitant right

to protection in the courts.

Alternatively, I argue that the first clause of section “1985(2) does create

substantive rights” Irizarry v. Quiros, 722 F.2d 869, 872 (1st Cir. 1983) for

Plaintiffs and witnesses to be free of obstructive conspiracies, and therefore judicial

protection is a right retained by the people for the Ninth Amendment

Finally, if those arguments are insufficient, the Massachusetts Constitution

says that this specific right was already included in the Massachusetts

Constitution, even though it had not yet been specifically mentioned. “No

proposition inconsistent with any one of the following rights of the individual, as at

present declared in the declaration of rights, shall be the subject of an initiative or

referendum petition... the right of access to and protection in courts of justice...”

Massachusetts Constitution 48, Init., Pt. 2, § 2 therefore judicial protection is a

right retained by the people for the Ninth Amendment

The First Circuit failed “to observe that fundamental fairness essential to the

very concept of justice.” Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)

Each one of the justices deciding this case took an oath swearing that you

would “support and defend the Constitution of the United States against all

enemies, foreign and domestic.” “This oath certainly applies in an especial manner,

to their conduct in their official character. How immoral to impose it on them, if

they were to be used as the instruments, and the knowing instruments, for violating

what they swear to support!” Marbury v. Madison, 5 U.S. 137, 180 (1803) “[A]

provision of the Bill of Rights which is ‘fundamental and essential to a fair trial’ is

made obligatory upon the States by the Fourteenth Amendment.” Gideon v.

Wainwright, 372 U.S. 335, 342 (1963) I argue the Federal courts have a duty to

provide protection as well, “where federally protected rights have been invaded, it

has been the rule from the beginning that courts will be alert to adjust their

remedies so as to grant the necessary relief’ Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388, 392 (1971) “No court should condone the unconstitutional

and possibly criminal behavior of those who planned and executed this [November

19th fake threats conspiracy.]” United States v. Payner, 447 U.S. 727, 733 (1980)

“state courts have the solemn responsibility equally with the federal courts to

safeguard constitutional rights.” Burt v. Titlow, 571 U.S. 12, 19, 134 S. Ct. 10, 15,

187 L. Ed. 2d 348 (2013)

“It may be that it is the obnoxious thing in its mildest and least repulsive

form; but illegitimate and unconstitutional practices get their first footing in that

way, namely, by silent approaches and slight deviations from legal modes of

procedure... It is the duty of courts to be watchful for the constitutional rights of the

citizen, and against any stealthy encroachments thereon.” Coolidge v. New

Hampshire, 403 U.S. 443, 454, 91 S. Ct. 2022, 2031, 29 L. Ed. 2d 564 (1971), holding

modified by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112

(1990)

Kearney’s attacks took place on Facebook, the attacks will have lasting

obstructive impacts, unlike “violent disruptions [in the courtroom that] can be cured

swiftly by bodily removing the offender from the courtroom, or by physical

restraints” United States v. Wilson, 421 U.S. 309, 316 (1975) This makes it all the

more reason this court should make sure obstruction of this kind does not go

unpunished.

“[A]n eventual trial that reflects witness intimidation or jury tampering is as

bad as not trial at all. ” United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir.

1985)

“Rules of practice and procedure are devised to promote the ends of justice,

not to defeat them. A rigid and undeviating judicially declared practice under which

courts of review would invariably and under all circumstances decline to consider

all questions which had not previously been specifically urged would be out of

harmony with this policy.” Hormel v. Helvering, 312 U.S. 552, 557 (1941)

This court should ask the US Attorney’s Office to investigate.

“[I]t is firmly established that the power to punish for contempts is inherent

in all courts. This power reaches both conduct before the court and that beyond the

court's confines, for ‘the underlying concern that gave rise to the contempt power

was not . . . merely the disruption of court proceedings. Rather, it was disobedience

to the orders of the Judiciary, regardless of whether such disobedience interfered

with the conduct of trial...’ Chambers v. Nasco, Inc., 501 U.S. 32, 44 (1991) quoting

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798 (1987)

"Tampering with the administration of justice in this manner involves far more

than an injury to a single litigant. It is a wrong against the institutions set up to

protect and safeguard the public." Moreover, a court has1 the power to conduct an

independent investigation in order to determine whether it has been the victim of

fraud.” Chambers at 44. “For two or more to confederate and combine together to

commit or cause to be committed a breach of the criminal laws is an offense of the

gravest character, sometimes quite outweighing, in injury to the public, the mere

commission of the contemplated crime. It involves deliberate plotting to subvert the

laws, educating and preparing the conspirators for further and habitual criminal

practices. And it is characterized by secrecy, rendering it difficult of detection,

requiring more time for its discovery, and adding to the importance of punishing it

when discovered.” United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed.

1211 (1915)

“The inherent power of a federal court to investigate whether a judgment was

obtained by fraud, is beyond question. The power to unearth such a fraud is the

power to unearth it effectively. Accordingly, a federal court may bring before it by

appropriate means all those who may be affected by the outcome of its.

investigation.” Universal Oil Co. v. Root Rfg. Co., 328 U.S. 575, 580 (1946)

“[A]n inherent power must be a reasonable response to a specific problem and

the power cannot contradict any express rule or statute” Dietz v. Bouldin, 136 S. Ct.

1885, 1892 (2016) .

For the comparatively minor crime of a bribe, the 9th Circuit held that “a

referral to the U.S. Attorney or the FBI is an appropriate option; they have the

investigative resources and authority, and it. is their role to investigate and

prosecute criminal activity. But the court retains its own authority and need to

rectify abuses or corruption of its own judicial process, to maintain the integrity of

the court. See'Young, 481 U.S. at 796, 107 S.Ct. 2124. Thus, although the court may

seek the assistance of the executive branch to investigate and prosecute, the court

does not abdicate the decision to sanction misconduct. If, as a matter of

prosecutorial discretion, the executive branch declines to prosecute, courts still have

the authority to appoint private attorneys to prosecute actions. See id. at 800-01,

107 S.Ct. 2124.

A prosecutor, government or private, can function as an independent.

dispassionate investigator and presenter of evidence. A prosecutor can gather

evidence and investigate matters more thoroughly than a court can at an

evidentiary hearing alone. He or she can also serve to shorten the length of trial by

culling through evidence and witnesses beforehand to determine which are relevant

and credible.

Moreover, a prosecutor plays an important role in the criminal process.

Prosecutors, both government and specially appointed, have an ethical duty to

ensure that ‘justice be . . . done’ and, while responsible for prosecuting the guilty,

they must also make sure that the innocent do not suffer.” F.J. Hanshaw Enter, v.

Emerald River Develop, 244 F.3d 1128, 1140 (9th Cir. 2001)

The Decision conflicts with 4th, 5th, 6th, 7th, and 9th Circuits

The First Circuit was supposed to “uphold a sua sponte order of dismissal

only if the allegations contained in the complaint, taken in the light most favorable

to- the plaintiff, are patently meritless and beyond all hope of redemption.”

Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) It does not

make sense to preclude issues that may give the complaint hope.

“We apply abandonment and waiver principles to "provide a substantial

measure of fairness and certainty to the litigants who appear before us.” AdbulMumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 290 (4th Cir. 2018) “Mindful of

our role as a neutral arbiter, this Court typically does not ”ventur[e] beyond the

confines of the case on appeal to address arguments the parties have deemed

unworthy of orderly mention.” Manning v. Caldwell, 930 F.3d 264, 271 (4th Cir.

2019) “sua sponte invocation of the res judicata affirmative defense is and should be

the rare exception, not the rule, and one reserved for truly “special circumstances.’”

Clodfelter v. Republic of Sudan, 720 F.3d 199, 212 (4th Cir. 2013)

“A district court may only dismiss a case sua sponte after giving the plaintiff

notice of the perceived inadequacy of the complaint and an opportunity for the

plaintiff to respond.” Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016)” “We agree

with the position of other circuits that the courts should "decide the appeal on the

appellant's brief alone when the appellee fails to file a brief.” Schmidt v. Gray, 399

F. App'x 925, 926 n.2 (5th Cir. 2010)

“Since it is a waivable defense, it ordinarily is error for a district court to

raise the issue sua sponte.” Haskell v. Washington Township, 864 F.2d 1266, 1273

(6th Cir. 1988) Because the court did not allow me to raise the issues I am “entitled

to raise the issue[s] on appeal instead.” Stanislaw v. Thetford Township , 20-1660,

at *1 (6th Cir. July 19, 2021)

“It would be reckless to affirm on a ground that the appellant had never had

a chance to address because the appellee had failed to raise it.” Frederick v.

Marquette Nat. Bank, 911 F.2d 1, 2 (7th Cir. 1990) “claim-processing rules, if

properly invoked, must be enforced, but they may be waived or forfeited.” Hamer v.

Neighborhood Hous. Servs. of Chi. , 897 F.3d 835, 838 (7th Cir. 2018)

“Issue preclusion is an affirmative defense that may be waived if not

pleaded.” Deutsch v. Flannery, 823 F.2d 1361, 1365 n.2 (9th Cir. 1987) “Where the

facts are not in dispute an appellate court is not bound by the trial court's finding of

ultimate fact or conclusions of law.” Teamsters, Chauffeurs, L.U. 524 v. Billington,

402 F.2d 510, 512 (9th Cir. 1968)

“[A] court should not sua sponte dismiss an action when it is possible that the

defendant would waive the basis for dismissal by failing to plead a required

affirmative defense” Moore v. Morgan, 922 F.2d 1553, 1558 (11th Cir. 1991)

The precluded issues have merit.

A. Section 1983 Common law causation

Both the product liability claim and gross negligence claim were alleged prior to,

(SAC 45-71) and re-alleged within the section 1983 claims. (SAC 137 & 150)

“Section [1983] should be read against the background of tort liability that makes a

man responsible for the natural consequences of his actions” Monroe v. Pape, 365

U.S. 167, 187 (1961) “Anyone who ‘causes’ any citizen to be subjected to a

constitutional deprivation is also liable. The requisite causal connection can be

established not only by some kind of direct personal participation in the

deprivation, but also by setting in motion a series of acts by others which the actor

knows or reasonably should know would cause others to inflict the constitutional

injury.” Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989) “No

conduct has such an absolute privilege as to justify all possible schemes of which it

may be a part. The most innocent and constitutionally protected of acts or omissions

may be made a step in a criminal plot, and if it is a step in a plot neither its

innocence nor the Constitution is sufficient to prevent the punishment of the plot by

law.” Aikens v. Wisconsin, 195 U.S. 194, 205-206 (1904)

B. My state Action theories have merit

No court ever addressed police officers harassing me on Kearney’s Facebook

account “[A]n otherwise private person acts ‘under color of state law when engaged

in a conspiracy with state officials to deprive another of federal rights,” Tower v.

Glover, 467 U.S. 914 (1984) “The involvement of a state official in such a conspiracy

plainly provides the state action essential to show a direct violation of petitioner's

Fourteenth Amendment equal protection rights, whether or not the actions of the

police were officially authorized, or lawful. Moreover, a private party involved in

such a conspiracy, even though not an official of the State, can be liable under §

1983.” Adickes v. Kress Co., 398 U.S. 144, 152 (1970) “It is not enough to examine

seriatim each of the factors upon which a claimant relies and to dismiss each

individually as being insufficient to support a finding of state action. It is the

aggregate that is controlling.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95

S.Ct. 449, 42 L.Ed.2d 477 (1974)

Public shaming on social media is a weapon

“The targetfs] of public shaming lose their jobs, and those not yet targeted

adjust their own public and perhaps even private speech to avoid being the next

national pariah. In a regime where both financial and social possibilities hinge on

employment, to be rendered not just temporarily unemployed but unemployable is a

fate not substantially better than imprisonment. Social media can punish those

deemed offensive more severely than any formal sentence for a speech violation ever

could in the United States. The best strategy for most reasonably risk-adverse

people will hit upon to deal with this ominous threat to their livelihoods is to shut

up.” Koganzon, Rita. “The Politics of Digital Shaming.” The New Atlantis, no. 45,

2015, pp. 118-26. At 124

The Lower Court’s reason for issue preclusion is hypocritical

The First Circuit improperly cited Zannino to call my pro se brief perfunctory.

I cited case law for every legal theory, unlike “in a cursory reference in his appellate

brief, Zannino [who was represented by 2 attorneys] [sought] to ‘adopt all of the

arguments made on behalf of co-defendants’” U.S. v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990) Ironically the Lower courts’ have been sua sponte adopting Kearney’s co

defendants’ arguments as Kearney’s. The First Circuit normally considers

arguments with far less support. E.g., United States v. Gray, 780 F.3d 458, 464 (1st

Cir. 2015) (finding that argument not waived where defendant cited only one case

but “offered a short but on-point argument...” and “further developed her argument

in her reply brief, and during oral argument”) Regardless, a document filed pro se is

‘to be liberally construed,”’ Erickson v. Pardus, 551 U.S. 89, 94 (2007)

The first circuits use of Sparkle is just as bad. In Sparkle the lower court

dismissed the complaint for statute of limitations argument, which was an issue

relevant to the entire complaint, and the entire “argument advanced for why [the

court] should reverse [the holding was] in the reply brief.” Sparkle Hill, Inc. v.

Interstate Mat Corp., 788 F.3d 25, 30 (1st Cir. 2015)'In this case the Complaint is

not dependent on any single element that the District court dismissed the complaint

on. and arguments were made for each of the issues the District court relied on

[aside from RICO], the panel just deemed my arguments too perfunctory. Second, in

Sparkle the Appellant was not pro se, so the Appellant’s arguments did not have

any reason to be liberally construed. Third, the Appellee was not defaulted, and the

Appellee raised the waiver/issue preclusion argument, (Appellee brief 14-1618 at

12,15, and 16) while in this case the panel was acting sua sponte raising forfeited

defenses after briefing was closed, which is exactly the type of “sandbagging” the

rule is meant to avoid. Id at 29. “[I]t is equally essential in order that litigants may

not be surprised on appeal by final decision there of issues upon which they have

had no opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556

(1941)