Petition for Writ of Certiorari — Musgrave v. Hoyos

Ce U.S.

eo i1LED

OkLOOCMAT 20 Aled

IN THE

GOrricE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

KENDRA MUSGRAVE,

Petitioner(s),

against

INEZ Hoyos, HON., ADMINISTRATIVE LAW

JUDGE, HOUSING PART Q, Civit CouRT

OF THE CITY AND COUNTY OF NEW YORK,

Respondent(s)

On Petition For Writ Of Certiorari to the

United States Court of Appeals

For the Second Circuit

PETITION FOR WRIT OF CERTIORARI

KENDRA MUSGRAVE

Pro Se

9985 Appletree Place

Thornton, Colorado 80260

303-452-2854

A AT TE ATR SENATE MEO PE SCO cP ape ee eee

QUESTIONS PRESENTED

1. Can courts under the Rooker-Feldman doctrine of

abstention a) bar party who is a stranger to a proceeding,

from a filing a federal claim for cause arising out of such

proceeding; b) and make findings of fact and conclusions of

law?

2. Can a civil judgment be enforced against a) parties

joined in interest who have never filed such partnership in

accordance with local, state, or federal statute, and there

exists no legal recording of such partnership with any

county or secretary of state or any federal database in

relation thereto; b) otherwise against “John Doe,” and “Jane

Doe,” each as a party?

3. Does Defendant have immunity from this federal

claim?

4. Does a judge who contradicts statute or direct order

violate his or her oath of office?

ea ee ee Re

PARTIES TO THE PROCEEDING

Petitioner, Kendra Musgrave, pro se, 9985 Appletree Place,

Thornton, Colorade 80260. Defendant, Inez Hoyos, a

hearing officer, whose powers are derived from New York

City Charter §§1041-1047 and the New York City Civil

Court Act, assigned to Housing Part of New York City Civil

Court, New York County (Manhattan).

TABLE OF CONTENTS

ati cititinlsstthaniehinsessitsinschtnanctencsinsanesdinias ok l

CONSTITUTIONAL AND STATUTORY PROVISIONS....1

EAL SRIMIOD COP TERE CAG in cscccessncecsacscosssonsicnssnssanancence l

II. COURTS CANNOT DENY JURISDICTION ON

ROOKER FELDMAN AND ISSUE FINDINGS OF

FACT OR CONCLUSIONS OF LAW. .....cccccccscseseee 12

III. COURTS CANNOT RULE UPON A THIRD

PARTY LETTER, NOR SECOND CIRCUIT

UPHOLD SUCH RULING; AND NYAG CANNOT

BE ALLOWED TO INTERFERE. ............ccsesecsesseees 14

IV. PIERSON V. RAY IS INAPPLICABLE.

DEFENDANT KNEW AND RELIED UPON THE

DISMISSAL, WITH PREJUDICE, OF NYC91440 02

AS AGAINST KENDRA MUSGRAVE AND

SUBSEQUENT TO DISMISSAL THERE WAS A

CLEAR ABSENCE OF JURISDICTION. .........0..... 19

V. THERE IS NO JURISDICTION FOR AT WHIM

SUA SPONTE ADDITION OF PARTIES OR

ALTERATION TO COURT RECORD OR ISSUING

A WARRANT AGAINST ANYONE AND

EVERYONE AS DEFENDANT KNOWS;

SUBSEQUENTLY THERE IS A CLEAR ABSENCE

ce ths ot cae ape ES AP Rene 21

VI. PIERSON V. RAY IS INAPPLICABLE. JUDICIAL

IMMUNITY DOES NOT APPLY TO

See SUN iitisiinitticcenbiniisctntinthsciitda mvc 22

Si i ile

VII. DEFENDANT IS NOT ENTITLED TO IMMUNITY

FOR ACTS TAKEN OUTSIDE OF HER

GEOGRAPHICAL JURISDICTION WHICH IS A

CLEAR ABSENCE OF ALL JURISDICTION........ 23

VIII. DEFENDANT WAS DEPRIVED OF

JURISDICTION BY STATUTE OVER NYC91440

02 AND SUBSEQUENTLY THERE IS A CLEAR

ABSENCE OF JURISDICTON. ............cccscscssssssseeees 25

IX. COURT FAILED, TO PROTECT DOCUMENTS,

EVIDENCE, AND PRIMARY WITNESS TO BE

‘USED FOR TRIAL, WHICH WAS UPHELD BY

SECOND CIRCUIT, THUS DENYING PLAINTIFF

Se Be snes diiletiiiinkaatelaipiih disci huiinhia 29

8 RN MRC MR IED 8 Thar Sa COT IE 30

TABLE OF AUTHORITIES

Cases

Crist v. Town Court, 156 F.R.D. 85 (S.D.N.Y. 1994) .0.0........ 5

200-202 West 107th Street LLC v. Braun, Civil Hosing Court

New York County, NYLJ May 1, 2002, p. 23 col. 2........ 26

423 S. Salina Street, Inc. v. City of Syracuse 503,

ee RIE om EE Sa Te 5

and citing Parklane Hosiery Co. v. Shore, 439 U.S. 322,

id EEF Fp scsesetiesisteciinhiddanchniiadlcapiasiiibadabibiiittetiniteibiaitasbmniiaes 10

Blonder-Tongue Laboratories, Inc., v. University of Illinois

Foundation, 402 U.S. 313, 328-329 (1971)......cccccccccssesees 10

Blonder-Tongue Laboratories, Inc., v. University of Illinois

Foundation, 402 U.S. 313, 329 (1971).....cccccsscssssseeseseeeee 11

Bounds v. Smith, 430 U.S. 817, 825, 94 S.Ct. 2963 1977. 5, 18

Boyd v. Carroll, 624 F.2d 730, 732-733

CS es Fe dtngntnadeahcdiatetamakbintinass 13, 20

Butz v. Economou, 438 U.S. 478, 506 (1978).........00000000. 5, 20

Canatella v. State of California, 304 F.3d 843 (CA9 2002). 11

Cohen v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821)............ 5

Cozzo v. Tangipahoa Parish Council-President

Government, 279 F.3d 273 (5th Cir. 2002) ......cccsecsesessess 13

District of Columbia Court of Appeals v. Feldman,

SD TT: GEE Ca iit cctchiiceilalbciekci it a 7, 8, 13

Douglas v. Collins, 152 Misc. 839, 273 N.Y.S. 663 (Sup Ct,

Kings Co, 1934), aff'd 243 App Div 546 (2nd Dept 1934),

aff'd 267 N.Y. 557, 196 N.E. 577 (1935) ..ccccscccscseseeees, 5, 23

Ex parte Hull, 312 U.S. 546, 548-49 (1941).....cccccssesssseees 5, 18

Ex parte Young, 209 U.S. 123 (1908)......ccccccsssesscessssssssecesesess -y

Exxon Mobil Corp., v. Saudi Basic Industries Corp.,

PRG CRs ER saline siccttaiiiteaedas eee eS 3 7, 8,9

Forrester v. White, 484 U.S. 219 (1988) .....ccccccccsesecsssssees 5, 20

Saar W. Bll, SREB, Th CGY ii ici i 5

Hafer v. Melo, 502 U.S. 21, 30-31 (1991) ..cccscccccccscssssssessees 11

Hansberry v. Lee, 311 U.S. 32, 41-42 Sere ncittiiischaaaist 10

Hansbury v. Lee, 311 U.S. 32 (1940) w.ccccccccccecesesescsssceseceees 1]

Hansbury v. Lee, 311 U.S. 32, 40 (1940) ....ccccccccccececssssscseees 10

Haring v Prosise, 462 U.S. 306, 313 (1983) ....cccccececscseseesees 1]

Hartford Courant Company v. Pellegrino, 380 F.3d 83

a PD iiciiiescasscineiaicechinlibliiicab ic tias insti a 6, 11

Heines v. City of Buffalo 436 NYS 2d 512 NY App 4th Dept.,

RDA. sssoanisisheininbesitagsidadjeabnichladsiamamainkiinicaeaaba teas: cits 5,12

Heintz, et al. v. Jenkins, 514 U.S. 291 (1995) .....ccccccssseseseeees 26

Henry v. First National Bank of Clarksdale, 595 F.2d 291,

ore 6) COO. TA viii ee 13, 20

Hoya Saxa, Inc. v. Gowan, 149 Misc.2d 191;

571 N.Y.S.2d 179 (App Term 1991) .u.......ccccescscscesescscsees 27

Inre Roy Moore,__U.S.__,__S.Ct.__, 2003

WOE, DEP PIS seus catcnibaliisephieskcdccteuhaciicns oii ete es ee 18

Jersey Street Associates LLC v. Quality Cleaning Corporation

N.Y.City Civ.Ct., 2002. [Westlaw] ............cccccccccesssessssees 25

Johnson v. DeGandy, 512 U.S. 997 (1994) w.cccccccsssesecssssssecees 9

Kellman v. State of New York, __N.Y.S.2d__, 2005 WL

954643, 2005 N.Y. Slip Op. 25155, NYLJ April 26, 2005,

ES 2. 8 ppanienenmartenenmn namie) | Use al many cr re aie

La Pier v. Deyo 100 A.D.2d 710 (3rd Dept 1984)...........0.+. 25

ili

Lopez v. Vanderwater, 620 F.2d 1229 (CA7 1980).........-0++ 23

Lynch v. Household Finance Corp., 405 U.S. 538, 31 L.Ed.2d

G50 2DT DD iccisnisinsinionstiniineiiiailieiatasatearaiaalie hadi 5

Maestri v. Jutkofsky, 860 F.2d 50, 52 (CA2 1988), cert. den.

yt GY, a eer ee 5,24

Malley v. Briggs, 475 U.S. 335 (1986) ...ccscsssssssssssseee 5, 21, 22

Martin v. Wilks, 490 U.S. 755, 759 (1989) .sccscccccccssssssssseees 5,9

Martin v. Wilks, 490 U.S. 755, 761 (1989) ......ccccccsssssssssseeee 10

Mennella v. Lopez-Torres, 229 AD2d 153,

655 N.Y.S.2d 604 (2nd Dept 1997), aff'd 91 N.Y.2d 474,

672 N.Y.S.2d 834, 695 N.E.2d 703 (1998) ......cccceeceeee 5, 22

Moccio v. New York State Office of Court Admin., 95 F. 3d

195 (199-20B) (CA 1996) acccocccccececcccsesesccerescoscsccsseseveseseaee 7

Monroe v. Pape 365 U.S. 167 (1961) ....c.ccccccseeseeereersenenenees 12

Monroe v. Pape, 365 U.S. 167, 172 (1961) .....cccceceereereereeneeee 5

Montana v. United States, 440 U.S. 147, 154-155 (1979).... 10

New York Times Co. v. Sullivan, 376 U.S. 254, 300 (1964). 19

NLRB vy. Bildisco & Bildisco, 465 U.S. 513, 529-530,

BR, 10 (BIDE). .cccoccoscesercresccesnecssesnesensiestesteosbenensessosseesssnstensen 10

Parklane Hosiery Co. v. Shore, 439 U.S. 322, n.7 (1979).... 11

Pierson v. Ray, 386 U.S. 547, 554 (1967) .......cccsecseeeseerensees 13

Richardson v. Koshiba, 693 F.2d 911 (CA9 1982)......... 20, 23

Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir 1985)............ ll

Romea v. Heilberger & Assocs., 988 F. Supp. 712

(SDNY 1997), aff'd 63 F.3d 111 (CA2 1998)...........cce000 26

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)........00+ 7,8

Santiago v. City of Philadelphia, 435 F. Supp. 136 (ED

Permnsylvamia, 197°7).....c.cccccccccccoscscscccsccccssscssscsssccsocsesccoecs 22

Soldal v. County of Cook United States 506 US 56 (1992) 5, 6

Stone v. Williams, 766 F.Supp. 158, 162 (S.D.N.Y. 1991),

aff'd., 970 F.2d 1043 (1992), cert. denied, 124 L.Ed.2d 243

seceneseqnsescsoossnstessenbensatentennestenelessentessebenssinusssaseshsnnisestesuensnns 1]

Totaram v. Cordero, NYLJ, April 16, 2003, p.22, col.3 ...... 27

Tulsa Professional Collection Services, Inc v. Pope, 485 U.S.

7B (1 DRG) scecccersessesssccsercnsincesonsensssesoneseteedsnssesonabeessnsnsnenes 10

iv

U.S. Fidelity & Guar. Co. v. United States, 837 F2d 116, 120

a Ge, Ba cccersecnserecsrsenmnsninsnicatinntaiitiliiiatadasitibtaatans 18

United States v. Lee, 106 U.S. 196, 220 (1882).........ccccc0000 18

United States v. Will, 449 U.S. 200, 66 L.Ed.2d 392.............. 5

William L. Bonnel Co., v. Katz, 23 Misc. 2d 1028,

1031 196 N.Y.S. 2d 763, 768 (Sup. Ct. 1960)...........000. 26

Wong Wing Fai Co., S.A. v. United States, 840 F2d 1462,

PRES hs Ce ee SED cttintcsieenchieapiteninteinaninrinitaates 18

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,

5 Sa re a icscimnnustsersinsiciiannnaiesisnbanisiniabsdaintpniiniibaiatiaidiis 10

Statutes

ee are By ee inteeaarneriscinnsiceteaneieiniticinneiiianiimeaiiaiiaes l

SB ie Se rey Be iccersensntntneniscnsennnphignainntsins sangesenninuieaniitin l

NIIUE> SETaP IT cccctnsiiipncesscendnnineunnccesnininintbenbabtinnnenninamaianmielonatias 18

Executive Order No. 11222 issued May 8, 1965, 30 F.R. 6469

ecenseonsnstnahennteqeventiepneantonszenasngiennqussinnabauhbanpenemeebimeunisduescanians 18

Sarbanes-Oxley Act of 2002, P.L. 107-204, July 30, 2002 .. 29

Other Authorities

Oey GENUINE xonscssnncennseinsinsenntinscstanendenlishinedsabieieabtionsl 14

Rules

Se a l

gE ee Ne ET 1, 17, 20

PAE NEE TID socscintpsensetinnanigecscvemiennatniaieinttentibnbinaiiiaiinieeniatibads l

gy ne ne CLT ey 1, 17, 20

Paar SN ED inicsecetecsisincnisciadaniieeiniindasiintaniinlandiabaianaiina 1, 13, 20

Constitutional Provisions

Constitution of the United States of America, 14" Amendment

RC a ee eR eae EE ES COPE NE 11,18

Constitution of the United States of America, 4th, 5th, 7th,

CE Be I ccertikerientsiictit ed es l

sentivieidenneesatbeeinhdeidnihaihiipuuhiiitnasstiasiiantiicbiataibaneisbunnivastitetntiindibi 11,18

Constitution of the United States of America

FRE OR ELLA EN OY HE I CINE RULE 14, 25

Constitution of the United States of America,

Be BG picecnncttettnitinsciteinnninnintiainnntannasiine l,

New York State Constitution Article 6..............cccccccccseeeeeeees

New York Civil Practices & Procedure

OG G1 ented FOB cccssnscccscccssssececencecononensscncsieosessecaseaconsnssncocscenees

BIO IZ ....cccccoccsnseccssensecenscasncsnnsssssscounanssssecososnasssnssescsossesscesscess

BE SI ao anccssacescecescennnsnesnnnsnsteneresensasnennnsennsnessnsanconnsasssonsenienah

SE SEL CO ICN AAR OCR AMR Th

TELESALES GAT EAE AI

New York Statute

DET BI cccncensnceccnssccocnncensnncensnsensnnenscsncssenshanennensansoonennte

AE, BE BO1 ete FER cencncesecncccnnsitnrnececenccccsnssssccscscsnssscsonssennss

MDL §328(3)........... PERE © EL Bk OTR TC ENS

Peis CGIOOE GS BA BB cccccsccccnenscnnenteccsstasasncccscccncncsnnssesccnees

PemTe Cee L600 BET ccsacccascecsssscsssccnscsnnnseccezacsccssnsccssannese

TERE ee ee creer cree

Peay Wears Clty CRUG OP csccaccscnccnscsnscsccnsnecncscsessnnteessosinescennss

vi

OPINIONS BELOW

STATEMENT OF JURISDICTION

Jurisdiction is pursuant to 28 USC §1251(1) and by

extension granted by this Court to file Petition on or before

May 20, 2005.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitution of the United States of America, 4th, 5th,

7th, and 14th Amendments; Constitution of the United States

of America, Article I, Section 9; Article 6, Clause 2; 42 USC

§§ 1983, 1988; 28 U.S.C. § 453; FRAP 31; FRCP Rule 56;

FRCP Rule 12; FRCP Rule 8(c); FRCP Rule 7; Local Civil

Rule 12.1

STATEMENT OF THE CASE

After an illegal seizure of Kendra Musgrave’s bank

account obtained by altering captions to make Kendra

Musgrave a party to a $9,855.18 money judgment issued by a

hearing officer (“JHO”) in Housing Part of Civil Court, New

York City, New York County (“Housing Part”) under New

York County L&T Index No. 83622/00 “NYC83622/00,

which judgment was never served, not even to the bank, and

the Housing Part file to which Kendra Musgrave was then

denied access to for almost a year; a portion of the alleged

judgment creditors then sued Kendra Musgrave, whose

address of 9985 Appletree Place, Thornton, Colorado 80260,

was court record, in New York County L&T Index No. 91440

02 (““NYC91440 02) as a partner joined in interest to tenant,

(“Dr. Margareta Griesz-Brisson & Kendra Musgrave

Respondent Tenant’’).

As is exhibited to Complaint and Amended

Complaint, after attorney for alleged creditors declared to

Housing Part that he did not know Kendra Musgrave’s

address and finally “No, she’s not a tenant,” JHO Shlomo

Hagler, dismissed with prejudice NYC91440 02, as against

Kendra Musgrave for lack of jurisdiction, the first day that the

matter appeared on the calendar.

No appeal was ever taken from the dismissal of the

petition (with prejudice) as against Kendra Musgrave. No

motion for reconsideration or renewal was ever made in

regard to that order.

Defendant rendered final judgment for subject

premises and over $20,448.35 against tenant, Dr. Margareta,

Griesz-Brisson, only under NYC91440 02. With contempt

then pending in New York City Civil Court, New York

County, NYC83622/00, for attorney’s willful non-compliance

to restore bank account, inter alia, to Kendra Musgrave,

Defendant then added Kendra Musgrave, and as a partner

joined in interest to tenant, on warrant of eviction Defendant

issued in NYC91440 02, so such warrant was executable

against “Dr. Margareta Griesz-Brisson & Kendra Musgrave

tenant,” also “John Doe” and “Jane Doe” each, as tenants,

making each liable fully to such judgment creditors for

judgment property and over $20,445.35.

In New York warrants of eviction are never available

to the public.

Plaintiff sued Defendant pursuant to 42 USC §§1983

1988, in her official and personal capacity in the United States

District Court for the Southern District of New York on or

about August 8, 2003. Plaintiff sought a temporary

restraining order pending injunction hearing; an injunction;

declaratory judgment, jury trial and the costs and fees thereof

from the federal court.

Defendant was personally served according to statute

and service was deemed proper.

In complying with clerk’s procedural instructions to

ensure proper service, Kendra Musgrave called New York

City’s Corporation Counsel, and the Office of the Attorney

General of the State of New York (“NYAG”), expecting

NYAG to refuse service. New York City Corporation

- |

ounsel refused service. NYAG requested service “just to be

safe.”

NYAG was previously contacted when Kendra

Musgrave’s bank account was seized, no judgment was

recorded, served, and otherwise denied access to Housing Part

file.

Court granted hearing on injunction scheduled

August 23, 2003 (“Hearing”) but denied temporary restraining

order pending hearing.

At NYAG’s request, NYAG was served courtesy copy

of Summons and Complaint (03 CV 5994) at approximately

4:00 p.m. August 13, 2003. ;

At approximately 9:00 a.m. August 14, 2003,

possession of subject premises was taken from Dr. Griesz-

Brisson, the tenant, locking up tenant’s exempt property

including, documentary evidence, stored information, as well

as court record made record exhibited in the federal court,

which was Plaintiff's supporting evidence, to the instant

action, and making also unavailable tenant for trial.

Original service papers were filed with the court. The

damage being done Plaintiff sought to enjoin, Plaintiff

requested at Hearing an injunction at least against the use of

plaintiff's name as a partner joined in interest to Dr. Griesz-

Brisson or anyone, without authorization, and against taking

or withholding of Plaintiffs personal property under

Defendant’s colour of authority; which Court denied but

never reduced to written order.

Assistant Attorney General William B. Jaffe remained

present at Hearing, but did not sit at Defendant’s table, make a

formal appearance on the record, or speak but a few word

words. The District Court ruled from the bench New York

was “not a necessary party.” The District Court also ruled

from the bench, denying Plaintiff injunction sought, but did

not reduce to written order.

The District Court then granted permission to Mr.

Jaffe, who did not participate in the Hearing, to write a letter

Sn

to court to influence the court to dismiss Plaintiff's action,

exhibited in Plaintiff's Amended Complaint. The court’s

docket is void of any filings by Defendant, NYAG or Mr.

Jaffe.

The District court deemed Plaintiff indigent status;

As is exhibited in Plaintiff's Amended Complaint, Mr.

Jaffe wrote the District court a letter on NYAG letterhead

dated August 23, 2003, citing “Rooker-Feldman” and

“absolute immunity” as court’s basis dismissing Plaintiff's

action.

After Defendant’ time to file an Answer expired, the

District court ruled upon Mr. Jaffe’s letter, dismissing

Plaintiff's action on Rooker-Feldman, and, Pierson v. Ray,

which order was then mailed to Plaintiff in Colorado.

Plaintiff's motion for summary judgment or in the

alternative a default judgment was not docketed and returned

by mail Plaintiff in Colorado.

In Order dated September 26, 2003, Court denied the

transcript of record made of hearing held August 23, 2003,

necessary to appeal. The transcript is therefore missing from

the Appendix, filed with this petition.

Without this transcript, Plaintiff then appealed to

United States Court of Appeals for the Second Circuit

(“Second Circuit”), arguing that District Court’s order was

void on its face: there was no “motion,” of any kind, for court

to “grant;” Rooker-Feldman, was inapplicable; Defendant was

not immune; Defendant otherwise defaulted; failure to grant

injunction contradicted federal statute and violated Plaintiff's

rights; and denial of the transcript necessary appeal, especially

an oral ruling, denied her due process, inter alia.

In Order filed February 2, 2004, Second Circuit

ordered appellee’s brief filed within thirty days (April 6,

2004) after appellant’s brief (March 5, 2004).

NYAG did not appeal District Court’s ruling at

Hearing, the only hearing, in action, that New York State was

“not a necessary party.” Without any motions or brief filed

by appellee, Plaintiff, in motion dated April 17, 2004, moved

the court to grant her appeal in its entirety. Second Circuit

denied motion “moot” because NYAG, without prior motion,

filed April 20, 2004 oversize, third-party appellee’s brief,

which brief contained voluminous argument, never raised or

asserted in the District court. Second Circuit then denied

Plaintiff's motion to reject NYAG’s papers.

Because Second Circuit accepted NYAG’s brief on

behalf of appellee filed April 20, 2004, Plaintiffs time to file

a reply had expired.

Despite, clear rulings of this Court and other Federal

and New York State Courts in Cohen v. Virginia, 6 Wheat.

264, 5 L.Ed. 257 (1821); United States v. Will, 449 U.S. 200,

66 L.Ed.2d 392; Ex parte Young, 209 U.S. 123 (1908); Ex

parte Hull, 312 U.S. 546, 548-49 (1941); Monroe vy. Pape,

365 U.S. 167, 172 (1961); Lynch v. Household Finance Corp.,

405 U.S. 538, 31 L.Ed.2d 424 (1972); Bounds v. Smith, 430

U.S. 817, 825, 94 S.Ct. 2963 1977; Butz v. Economou, 438

U.S. 478, 506 (1978); Malley v. Briggs, 475 U.S. 335 (1986);

Forrester v. White, 484 U.S. 219 (1988); Martin v. Wilks, 490

U.S. 755, 759 (1989); Hafer v. Melo, 502 U.S. 21 (1991);

Soldal v. County of Cook United States 506 US 56 (1992);

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54

(1992); Crist v. Town Court, 156 F.R.D. 85 (S.D.N.Y. 1994);

Douglas v. Collins, 152 Misc. 839, 273 N.Y.S. 663 (Sup Ct,

Kings Co, 1934), aff'd 243 App Div 546 (2nd Dept 1934),

aff'd 267 N.Y. 557, 196 N.E. 577 (1935); Mennella v. Lopez-

Torres, 229 AD2d 153, 655 N.Y.S.2d 604 (2nd Dept 1997),

afPd 91 N.Y.2d 474, 672 N.Y.S.2d 834, 695 N.E.2d 703

(1998); and even most recently Kellman v. State of New York,

__N.Y.S. 2d ___, 2005 WL 954643, 2005 N.Y. Slip Op.

25155, NYLJ April 26, 2005, p. 18 col.1; as well as Heines v.

City of Buffalo 436 NYS 2d 512 NY App 4th Dept., 1981;

423 S. Salina Street, Inc. v. City of Syracuse, 503 N.E.2d 63

(NY 1986); Maestri v. Jutkofsky, 860 F.2d 50, 52 (CA2 1988),

cert. den. 489 U.S. 196 (1989); and Hartford Courant

|

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{

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Company v. Pellegrino, 380 F.3d 83 (CA2 2004); inter alia,

the Second Circuit then denied Kendra Musgrave’s appeal on

the abstention doctrine of Rooker-Feldman.

Obviously, the question for this Court is just how far

does Rooker-Feldman doctrine extend?

REASONS FOR GRANTING THE WRIT

Rather than. complex issues of law that requires

determination by the minds of our country’s highest court,

what is at stake in the instant action is fundamental and to all

U.S. law, thus affecting everyone in these United States, the

Constitution and all rights secured thereunder, which this

Supreme Court of these United States has the duty to protect.

There is no reason why a case such as this should have

to come to the Supreme Court of these United States. That it

does is, is precisely why certiorari should be granted: there is

no other court to repair to for justice.

The courts below so contradicted federal statute, state

statute, its own rulings, this Court’s rulings, supplanting the

supremacy of the constitution, this Court and Congress, that

this Court needs to address it for all of the federal courts.

Circuit court condoned debt collection practices

impact everyone in the nation.

The lower courts condoned procedural practice,

impacts everyone in the nation.

Court’s decisions are contradictory in and of itself:

Abstention under Rooker-Feldman is a non-waivable

jurisdictional defect, and judicial immunity is an affirmative

defense;

The act of taking of personal property without due

process of law or in compliance with statute has already been

condemned as an illegal search and seizure in violation of the

Fourth Amendment in Soldal v. County of Cook United States

506 US 56 (1992).

I. THE ROOKER-FELDMAN DOCTRINE DOES

NOT APPLY TO THIS CASE.

The Second Circuit upheld the judgment of the

District Court, on Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923); District of Columbia Court of Appeals v. Feldman,

460 U.S. 462 (1983) under Moccio v. New York State Office

of Court Admin., 95 F. 3d 195 (199-200) (CA2 1996) as

support for dismissal of Plaintiff's civil rights action; which,

is the very Second Circuit case which the United States

Supreme Court exemplified as improper extension of the

Rooker-Feldman doctrine so as to override Congress’s

conferral of jurisdiction upon the federal courts concurrently.

Exxon Mobil Corp., v. Saudi Basic Industries Corp., (03-

1696) (U.S. 2005).

In the landmark case of Exxon Mobil Corp., v. Saudi

Basic Industries Corp., the United States Supreme Court

revisited the subject of the Rooker-Feldman abstention

doctrine and held

“..the doctrine -has sometimes been construed to °

extend far beyond the contours of the Rooker and

Feldman cases, overriding Congress’ conferral of

federal-court jurisdiction concurrent with jurisdiction

exercised by state courts, and superceding the

ordinary application of preclusion law pursuant to 28

U.S.C. section 1738. See, e.g. Moccio v. New York

State Office of Court Admin., 95 F. 3d 195 (199-200)

(CA2 1996).” Exxon Mobil Corp., v. Saudi Basic

Industries Corp., (03-1696) (U.S. 2005).

After upholding the dismissal on Rooker-Feldman

grounds, the Second Circuit found, “In addition, as the district

court observed....”, upon which a discussion of judicial

immunity followed. It is dicta in the most classic sense. Each

court, the Southern District and United States Court of

Appeals for the Second Circuit upheld dismissal pursuant to

the Rooker-Feldman abstention doctrine. Rooker v. Fidelity

Trust Co., 263 U.S. 413 (1923); District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983).

The United States Supreme Court clarified the correct

limitation of the Rooker-Feldman-Exxon doctrine:

“The Rooker-Feldman doctrine, we hold today, is

confined to cases of the kind from which the doctrine

acquired its name: cases brought by state-court losers

complaining of injuries caused by state-court

judgments rendered before the district court

proceedings commenced and inviting district court

review and rejection of those judgments. Rooker-

Feldman does not otherwise override or supplant

preclusion doctrine or augment the circumscribed

doctrines that allow federal courts to stay or dismiss

proceedings in deference to state-court actions.”

Exxon Mobil Corp., v. Saudi Basic Industries Corp.,

(03-1696) (U.S. 2005).

Thus defined by the highest legal authority in the

United States of America, the Rooker-Feldman abstention

doctrine does not apply to the case on certiorari. Plaintiff was

not a ‘state-court loser’. She was not even a ‘state-court’

party. For lack of jurisdiction, the proceeding NYC91440 02

in Housing Part was dismissed with prejudice, as against her,

on the very first day that the matter appeared on the calendar

of that Court.

A stranger whom the court rules it has no jurisdiction

over, who subsequently receives a dismissal of that

proceeding with prejudice, cannot be described as a ‘loser’.

Self-evidently, Plaintiff had prevailed Housing Part by

obtaining the dismissal with prejudice. The action complained

of are ministerial acts which robbed her of that victory and

further posed gross violations to her civil rights.

The Plaintiff in this federal litigation has, like Exxon-

Mobil, “...plainly has not repaired to federal court to undo the

Delaware judgment in its favor...”. Exxon Mobil Corp., v.

Saudi Basic Industries Corp., (03-1696) (U.S. 2005). In this

case it is a New York decision which favored the federal

Plaintiff rather than a Delaware judgment, but the principle is

clearly the same.

Plaintiff was not inviting the court to review or reject

the fact that the Housing Part proceeding was dismissed with

prejudice as against her.

Rather, the case on certiorari is on point with Exxon,

in that an independent federal claim is being pursued by a

party which had also prevailed in state-court litigation. Exxon

Mobil Corp., v. Saudi Basic Industries Corp., (03-1696) (U.S.

2005).

It has long been held that Rooker-Feldman does not

bar a federal suit by one who was not a party to the state-court

proceedings. Johnson v. DeGandy, 512 U.S. 997 (1994).

Clearly, since the underlying action was dismissed against her

with prejudice, Plaintiff cannot possibly be mistaken for a

party to the state-court proceedings at the time of all of the

actions complained of. Thus Johnson v. DeGandy is

applicable and Rooker-Feldman is not.

In Martin v. Wilks the United States Supreme Court

upheld: “...the general rule that a person cannot be deprived of

his legal rights in a proceeding to which he is not a party.”

Martin v. Wilks, 490 U.S. 755, 759 (1989). In that case Chief

Justice Rehnquist quoted Justice Brandeis:

“The law does not impose upon any person absolutely

entitled to a hearing the, burden of voluntary

intervention in a suit to which he is a

stranger....Unless duly summoned to appear in a legal

proceeding, a person not a privy may rest assured that

a judgment recovered therein will not affect his legal

rights.” Martin v. Wilks, 490 U.S. 755, 763 (1989),

quoting Chase National Bank v. Norwalk, 291 U.S.

431 (1934).

“...[I]t is a principle of general application in Anglo-

American jurisprudence that one is not bound by a judgment

in personam in a litigation in which he is not designated as a

party or to which he has not been made a party by service of

process.” Martin v. Wilks, 490 U.S. 755, (1989), quoting

Hansbury v. Lee, 311 U.S. 32, 40 (1940) and citing Parklane

Hosiery Co. v. Shore, 439 U.S. 322, n.7 (1979); Blonder-

Tongue Laboratories, Inc., v. University of Illinois

Foundation, 402 U.S. 313, 328-329 (1971); Zenith Radio

Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969).

Certainly the same can be said of one ruled a stranger by

having the proceeding against them dismissed with prejudice

on the first day the case appears on the calendar.

The two exceptions recognized in Martin v. Wilks do

not apply. Martin v. Wilks, 490 U.S. 755, 761 (1989). In that

case the exceptions were spelled out as follows:

“We have recognized an exception to the general rule

when, in certain limited circumstances, a person, although not

a party, has his interests adequately represented by someone

with the same interests who is a party. See Hansberry v. Lee,

311 U.S. 32, 41-42 (1940)(“class” or “representative” suits);

FRCP Rule 23 (same); Montana v. United States, 440 U.S.

147, 154-155 (1979) (control of litigation on behalf of one of

the parties in the litigation). Additionally, were a special

remedial scheme exists expressly foreclosing successive

litigation by nonlitigants, as for example in bankruptcy or

probate, legal proceedings may terminate pre-existing rights if

the scheme is otherwise consistent with due process. See

NLRB v. Bildisco & Bildisco, 465 U.S. 513, 529-530, n. 10

(1984)(“[P]roof of claim must be presented to the Bankruptcy

Court...or be lost”); Tulsa Professional Collection Services,

Inc v. Pope, 485 U.S. 478 (1988) (nonclaim statute

terminating unsubmitted claims against the estate).” Martin v.

Wilks, 490 U.S. 755, 761 (1989).

The Court in Parklane Hosiery makes clear that the

reason for this holding is based upon Constitutional grounds.

“It is a violation of due process for a judgment to be binding

on a litigant who was not a party or a privy and therefore has

never had an opportunity to be heard.” Parklane Hosiery Co.

10

v. Shore, 439 U.S. 322, n.7 (1979) citing Blonder-Tongue

Laboratories, Inc., v. University of Illinois Foundation, 402

U.S. 313, 329 (1971) and Hansbury v. Lee, 311 U.S. 32

(1940). See also, Constitution of the United States of

America, 5" Amendment and Constitution of the United

States of America, 14" Amendment.

The Court of Appeals for the Second Circuit has also

recognized that the Rooker-Feldman abstention doctrine does

not bar suit by parties who were not a party to the state-court

proceedings. Hartford Courant Company v. Pellegrino, 380

F.3d 83 (CA2 2004). The same case also held that Rooker-

Feldman does not apply to administrative acts. Hartford

Courant Company v. Pellegrino, 380 F.3d 83 (CA2 2004).

The party who is essentially sent home and released

from the case must be allowed to rest upon that determination.

It would be absurd to suggest that due process can be rendered

by dismissing with prejudice against a person whom the court

ruled it had no jurisdiction over, only to then affect their

rights during the execution phase of final judgment in that

case.

In Hafer v. Melo, 502 U.S. 21, 30-31 (1991), the

Court stated: "But one general limitation the Court has

repeatedly recognized is that the concept of collateral estoppel

cannot apply when the party against whom the earlier decision

is asserted did not have a ‘full and fair opportunity’ to litigate

that issue in the earlier case", quoted also in Haring v Prosise,

462 U.S. 306, 313 (1983). See, also Robinson v. Ariyoshi,

753 F.2d 1468 (9th Cir 1985), vacated on other grounds, 91

L.Ed.2d 56, cited with approval by Stone v. Williams, 766

F.Supp. 158, 162 (S.D.N.Y. 1991), affd., 970 F.2d 1043

(1992), cert. denied, 124 L.Ed.2d 243:

Moreover, the warrant of eviction had already been

fully executed. A Ninth Circuit case on point demonstrates

how the Rooker-Feldman abstention doctrine can be mooted

by later events. Canatella v. State of California, 304 F.3d 843

(CA9 2002).

11

Although Plaintiff has no legal standing to appeal an

administrative proceeding she was ruled a stranger to, which

is the legally established fact and can be taken judicial notice

of in the court's own file, Second Circuit yet terminated her

action under the Rooker Feldman doctrine that she should file

for remedy, of some kind, in “state court.” The Second Circuit

thus improperly used the Rooker-Feldman doctrine to

supplant by Monroe v. Pape 365 U.S. 167 (1961):

“The federal remedy is supplementary to the state

remedy, and the latter need not be first sought and

refused before the federal one is invoked. Hence the

fact that Illinois by its Constitution and laws outlaws

unreasonable searches and seizures is no barrier to

present suit in the federal court.” Id. at.482.

quoted in Heines v. City of Buffalo 436 NYS 2d 512 NY App 4th

Dept., 1981; 423 S. Salina Street, Inc. v. City of Syracuse 68

N.Y.2d 474, 510 N.Y.S.2d 507, 503 N.E.2d 63 (1986).

For all of the reasons cited above, and most certainly

due to the fact Plaintiff, was ruled a stranger to the state-court

proceedings and that this case is in no way reconcilable with

the landmark holding of Exxon-Mobil v. Saudi Basic

Industries the Rooker-Feldman abstention doctrine does not

apply to this case. Plaintiff was not suing because “default

judgment was entered against her,” Plaintiff sued because no

judgment was entered against her, but was specifically

enforced against her, and as a partner joined in interest to

judgment debtor.

Il. COURTS CANNOT DENY JURISDICTION ON

ROOKER FELDMAN AND ISSUE FINDINGS

OF FACT OR CONCLUSIONS OF LAW.

United States District Court for the Southern District

of New York, the Honorable Gerard E. Lynch dismissed this

federal civil rights lawsuit holding that “Judge Hoyos has

moved to dismiss the complaint under the Rooker Feldman

doctrine and on the basis of a judge’s absolute immunity from

12

suit. The motion will be granted. [Since] “the acts

complained of here were clearly ‘within [the] judicial

jurisdiction’ granted to Judge Hoyos. Therefore she is

immune on account of them. Pierson v. Ray, 386 U.S. 547,

554 (1967). ...[W]hat Ms. Musgrave seeks, essentially, is

review of Judge Hoyos’s decision to enter a judgment against

her. However, “a United States District Court has no

authority to review final judgments of a state court judicial

proceedings. District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983).”

That District Court dismissed Plaintiff's civil rights

action for lack of jurisdiction under the Rooker-Feldman

doctrine, the District Court by its own order, had no

jurisdiction to make any finding of fact, i.e., “the acts

complained of here were clearly ‘within [the] judicial

jurisdiction’ granted to Judge Hoyos;” and “what Ms.

Musgrave seeks, essentially, is review of Judge Hoyos’s

decision to enter a judgment against her;” or, to then make

any conclusion of law: “Therefore she is immune on account

of them. Pierson v. Ray, 386 U.S. 547, 554 (1967).”

Abstention under Rooker-Feldman is a non-waivable

jurisdictional defect. Judicial immunity is an affirmative

defense. The court could not deny jurisdiction under the

abstention doctrine of Rooker-Feldman, then also rule upon

an affirmative defense. A contradictory order is void on its

face. An affirmative defense is waived if not pleaded (FRCP

Rule 8(c)); Cozzo v. Tangipahoa Parish Council-President

Government, 279 F.3d 273 (Sth Cir. 2002). “Absolute

immunity is an affirmative defense that is waived if it is not

pleaded.” Boyd v. Carroll, 624 F.2d 730, 732-733 (Sth Cir.

1980). “Failure to plead judicial immunity waived the

affirmative defense.” Henry v. First National Bank of

Clarksdale, 595 F.2d 291, 298 n.1 (Sth Cir. 1979).

Defendant was personally and properly served

according to statute. Defendant did not assert any defense.

13

The time to answer had expired before any decision was

rendered in the District Court.

There was no defensive argument the Second Circuit

could hear. That it did, was entirely at the expense of

Plaintiff's rights. Neither, can the Second Circuit cannot

uphold a decision rendered in response to a letter, or

otherwise, entertain third parties, certainly any third party, the

District Court previously ruled was “not a necessary party,”

when they happen to show up and declare a lack of

jurisdiction under Rooker-Feldman; but then go on to render

findings of fact on about judicial immunity. It is

contradictory.

Ill. COURTS CANNOT RULE UPON A THIRD

PARTY LETTER, NOR SECOND CIRCUIT

UPHOLD SUCH RULING; AND NYAG

CANNOT BE ALLOWED TO INTERFERE.

The Defendant is a hearing officer to the Housing Part

which was created by New York City Civil Court Act §110

(“NYCCA”), which restricts Defendant’s subject matter

jurisdiction thereto.

Defendant is not an elected judge, and cannot rule

over any claims of equity over $20 as set forth by the

Constitution of the United States, 7" Amendment.

Officers and employees of county courts are county

and not state officers. 1925, Op.Atty.Gen.903.

New York State’s Public Officer’s Law §2 states “The

office of a state officer is a state office. The office of a local

officer is a local office.”

New York State’s Public Officers Law §17 sets forth a

very comprehensive list of those State employees whom the

New York State Attorney General can defend in court. The

term “employee” is specifically defined and includes, inter

alia, employees of the Central Pine Barrens Joint Planning

and Policy Commission; the Dormitory Authority; soil and

water conservation districts; the Roswell Park Cancer Institute

14

corporation; the tourism council; the Niagara River Greenway

Commission; the Governor Nelson A Rockefeller Empire

State Plaza Performing Arts Center Corporation; and various

and sundry others. It does not list Defendants (or even

judges) of the Civil Court of the City of New York on its

exhaustive list. In fact no New York City employees are

listed therein because New York City has its own Corporation

Counsel to represent New York City employees. The website

for the New York State Attorney General’s Office boasts that

they have 500 attorneys. The website for the New York City

Corporation Counsel’s Office claims they have 650 attorneys.

It is a wholly separate entity from the State Attorney

General’s Office. Corporation Counsel has adamantly refused

to represent the Defendant in this civil rights action, as raised

to the Second Circuit.

The terms of employment for a state attorney is that

such attorney can represent only State of New York. There is

a conflict of interests NYAG paid by the taxpayers of New

York, to represent any but the State of New York.

There is a conflict of interest between NYAG’s

representation of this Defendant and its duty to defend the

State of New York with its duty to protect civil rights and

investigate criminal complaints, specifically, those previously

made by Plaintiff of the illegal seizure of her bank account.

There further exists a conflict of interests between

NYAG’s representation of this Defendant and New York .

Attorney General’s received campaign funds from NYC91440

02’s alleged judgment creditors, as is public record and raised

to Second Circuit.

Further, the constitutionality of state legislation was

not at issue or made of issue as set forth in Amended

Complaint and is further evidenced in court’s decision

dismissing action. District Court’s Order is void of any

reference to state statute or even NYAG, as is the docket to

such proceeding.

As well, the record is void of any papers filed for

NYAG to join this action.

Further, if and when a state statute is in question, and

NYAG properly joins an action, under New York’s Civil

Procedure Law & Rules (“CPLR”) §1012 NYAG can only

represent New York to support the constitutionality of

legislation of a state statute. NYAG cannot represent the

constitutionality of state statute and this Defendant, and not in

this action.

Since the Corporation Counsel has refused to

represent the Defendant, Defendant is required retain her own

counsel, or proceed pro-se such as Plaintiff. It is a further

violation of Plaintiff's civil rights to have to be opposed by

the State Attorney General’s Office at the appellate level,

when it has no authority for any involvement in this litigation.

NYAG is sworn to uphold civil rights, an obligation it cannot

fulfill by denying persons civil rights or representing others

who do so, or get around that fact by writing a federal judge

to get a ruling.

At Hearing Mr. Jaffe did not make a formal

appearance on the record. The few words he spoke may or

may not have been heard by the court reporter. Mr. Jaffe’s

was presence recognized by the Court and Plaintiff by the

record. Mr. Jaffe or NYAG never filed a notice of appearance

for Defendant. No papers of any kind were ever filed, as the

docket plainly shows, by or for Defendant in any capacity.

At Hearing District Court ruled that New York State is

“not a necessary party,” to Plaintiff's action. No appeal was

filed on such ruling.

At Hearing, District Court invited Mr. Jaffe to write

the court a “letter,” which letter is exhibited to Plaintiff's

Amended Complaint.

In response to Mr. Jaffe’s letter, Plaintiff wrote:

“Actually, I do not recall your Honor Gerald E.

Lynch, granting permission to Assistant Attorney

General, William Jaffee, [sic] to write a letter

16

(attached) to the court as a motion for summary

judgment to dismiss §1983 action 03 CV 5994, I, the

pro se plaintiff, filed. Nor, do I recall when Rule 56

of the Federal Rules of Civil Procedure were

suspended for such purpose. The only purpose for

which is further denial of due process, the course of

action taken precipitating the instant action. So

disposing of my action mano_a_mano, and more

especially when Mr. Jaffee [sic] has not so much as

filed a paper in this action, is highly inappropriate.”

After Defendant’s time had expired under statute to

file an Answer, the court dismissed this federal civil rights

lawsuit holding that “Judge Hoyos has moved to dismiss the

complaint under the Rooker Feldman doctrine and on the

basis of a judge’s absolute immunity from suit. The motion

will be granted.” ;

The Order is void on its face.

There was no motion to “grant.” The court’s docket is

void of any papers filed for or on behalf of and none, not even

an Answer was ever served on Plaintiff or filed by Defendant

in any capacity.

Mr. Jaffe’s letter, even as it appears, on NYAG

letterhead is not a proper Answer or motion under the Federal

Rules of Civil Procedure, FRCP Rule 7. FRCP Rule 12. FCRP

Rule 56 as well as Local Civil Rule 12.1, which, as of

February 26, 2003 requires “[a] represented party moving to

dismiss or for judgment on the pleadings against a party

proceeding pro se...shall serve and file the notice required by

Local Civil Rule 56.2 at the time the motion is served.” No

such notice was ever served because there was no such

motion. Any motion.

The Supreme Court has instructed us time and again

that, "courts must presume that a legislature says in a statute

what it means and means in a statue what it says there."

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54

(1992)

Plaintiff's action was dismissed in response to a letter

from NYAG Attorney General’s Office, which fact was flatly

ignored by the Second Circuit Court. Constitution of the

United States of America, 5th Amendment. Constitution of

the United States of America, 14th Amendment.

Imposing onerous conditions denies access to the

court (e.g., Ex parte Hull, 312 U.S. 546, 548-49 (1941) (state

and its officers may not abridge or impair a petitioner’s

rights); meaningful access to the courts is due process right to

“a reasonably adequate opportunity to present claimed

violations of fundamental rights to the courts.” Bounds v.

Smith, 430 U.S. 817, 825, 94 S.Ct. 2963 1977; Violation of

due process is not discretionary. Wong Wing Fai Co., S.A. v.

United States, 840 F2d 1462, 1470 n. 18 (9th Cir. 1988).

No court has discretion to violate constitution, statue

or applicable regulation. U.S. Fidelity & Guar. Co. v. United

States, 837 F2d 116, 120 (3rd Cir. 1988); In re Roy Moore,

__US.__,__—S. Ct. __, 2003 WL 21978095, quoting,

United States v. Lee, 106 U.S. 196, 220 (1882).

“Article VI of the Constitution of the United States

provides that Constitution ‘is the Supreme Law of the

Land ... and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.’ The justices

of this Court are bound by solemn oath to follow the

law, whether they agree or disagree with it, because

‘All of the officers of the government, from the

highest to the lowest are creatures of the law, and are

bound to obey it.’ (Aug. 20, 2003)

“Any person in government should: Uphold the

Constitution, laws and regulations of the United States and of

all governments therein and never be a party to their evasion.”

5 USC §7301, Executive Order No. 11222 issued May 8,

1965, 30 F.R. 6469.

Confident in their belief that the Federal Rules of

Appellate Procedure and Second Circuit Scheduling Orders

18

are as inapplicable to them as New York Public Officer’s Law

and the Federal Rules of Civil Procedure were below, without

any prior motion, NYAG, ‘vithout prior motion, then filed two

weeks after the expiration for filing appellee’s brief, an

oversize brief to advance various arguments not made below.

The docket shows no arguments or representations below.

There was therefore no argument that the court could hear on

behalf of Defendant, who was personally and properly served.

Yet, the Second Circuit accepted such filing, made the day

Plaintiff's reply was due. Therefore, Plaintiff was denied

even the opportunity. Plaintiff could only move the Second

Circuit to reject NYAG’s papers, which Second Circuit also

denied.

Second Circuit then upheld District Court on Rooker-

Feldman. Yet, Second Circuit’s failure to obtain jurisdiction

under Rooker-Feldman, somehow did not take away its

jurisdiction to make findings of fact, conclusions of law and

issue dicta about judicial immunity as with the Southern

District Court below. Nor did the Second Circuit address the

issue that it was upholding a letter — a letter from NYAG, a

third party, influencing a judge’s decision in a federal action.

In so doing the courts distinguished a superior class which is

repugnant to the constitution.

“The American Colonists were not willing, nor should

we be, to take the risk that ‘(m)en who injure and

oppress the people under their administration (and)

provoke them to cry out and complain’ will also be

empowered to ‘make that very complaint the

foundation for new oppressions and prosecutions.’

The Trial of John Peter Zenger, 17 Howell's St. Tr.

675, 721-722 (1735) (argument of counsel to the

jury)” New York Times Co. v. Sullivan, 376 U.S. 254,

300 (1964).

IV. PIERSON V. RAY IS INAPPLICABLE.

DEFENDANT KNEW AND RELIED UPON THE

DISMISSAL, WITH PREJUDICE, OF NYC91440

19

02 AS AGAINST KENDRA MUSGRAVE AND

SUBSEQUENT TO DISMISSAL THERE WAS A

CLEAR ABSENCE OF JURISDICTION.

Preliminarily, it must be noted that the one who is

claiming immunity has the burden of legally establishing that

immunity. Butz v. Economou, 438 U.S. 478, 506 (1978):

"No man in this country is so high that he is above the

law. No officer of the law may set that law at defiance

with impunity. All the officers of the government,

from the highest to the lowest, are creatures of the

law, and are bound to obey it.") (quoting United States

v. Lee, 106 U.S. 196, 220, 27 L. Ed. 171, 1 S. Ct. 240

(1882)). Only when the person claiming absolute

immunity can prove that such immunity is justified

will we impose it”.

See also Richardson v. Koshiba, 693 F.2d 911 (CA9 1982).

Immunity is an affirmative defense which is waived if

not properly raised by an answer or a motion to dismiss.

FRCP Rule 12; FRCP Rule 8(c); Boyd v. Carroll, 624 F.2d

730, 732-733 (Sth Cir. 1980); Henry v. First National Bank

of Clarksdale, 595 F.2d 291, 298 n.1 (5th Cir. 1979). No

answer was ever filed in this case. The letter from the NYAG,

a non-party to this federal civil rights action, was not a

‘motion to dismiss' cognizable by the FRCP Rule 7.

Defendant is not an appellate judge. Defendant is not

a judge. Defendant does not have jurisdiction to overturn the

rulings of another hearing officer assigned to the Housing

Part, and specifically JHO Hagler’s who had previously

dismissed with prejudice NYC91440 02 as against Kendra

Musgrave for lack of jurisdiction.

Housing Part decisively ruled it did not have

jurisdiction over Kendra Musgrave and dismissed the

proceeding with prejudice as against Kendra Musgrave.

Defendant JHO Hoyos cannot un-rule it to obtain jurisdiction

over Kendra Musgrave, and most certainly not after the

proceeding was over.

20

No appeal or reconsideration was brought by anyone

seeking to reverse the dismissal of the case as against Kendra

Musgrave. The record exhibited to Plaintiff's Amended

Complaint is clear Defendant well knew of such ruling and

relied on such ruling of JHO Hagler, prior to issuing a warrant

of eviction against “Dr. Margareta Griesz-Brisson & Kendra

Musgrave tenant.”

The petitioner-landlord had previously stated to

Housing Part that Kendra Musgrave was “not a tenant.”

Kendra Musgrave is not on the lease as is Housing Part’s

record. Kendra Musgrave is not on any lease as is Housing

Part record. There is no record of any legal partnership

Kendra Musgrave formed with Dr. Margareta Griesz-Brisson

to create “Dr. Margareta Griesz-Brisson & Kendra

Musgrave,” nor does Defendant have any authority to so

create one on behalf of either Dr. Margareta Griesz-Brisson or

Kendra Musgrave.

CPLR §4511(a) requires judicial notice of all common

law, statutes, and constitutions without request.

The non-payment case was dismissed with prejudice

specifically as against Kendra Musgrave for lack of

jurisdiction.

This is as clear as clear absence of jurisdiction gets.

Jurisdiction was clearly absent as a matter of law.

Defendant’s clear lack of jurisdiction over Kendra

Musgrave is incontrovertible as Defendant well knew. It was

a matter of law, and a very straightforward and uncomplicated

matter of law. The law does not protect “the plainly

incompetent [and] those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335 (1986).

V. THERE IS NO JURISDICTION FOR AT WHIM

SUA SPONTE ADDITION OF PARTIES OR

ALTERATION TO COURT RECORD OR

ISSUING A WARRANT AGAINST ANYONE

AND EVERYONE AS DEFENDANT KNOWS;

THERE IS A CLEAR ABSENCE OF

21

JURISDICTION.

The law does not protect “the plainly incompetent

[and] those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335 (1986).

VI. PIERSON V. RAY IS INAPPLICABLE.

JUDICIAL IMMUNITY DOES NOT APPLY TO

MINISTERIAL ACTS

Defendant’s actions complained of are ministerial

acts. The New York State Court of Appeals, the highest legal

authority in the State of New York, held that the issuance of a

warrant of eviction was ministerial act. Mennella v. Lopez-

Torres, 229 AD2d 153, 655 N.Y.S.2d 604 (2nd Dept 1997),

aff'd 91 N.Y.2d 474, 672 N.Y.S.2d 834, 695 N.E.2d 703

(1998). Thus, when the New York State Appellate Division

recognizes the issuance of a warrant of eviction as a purely

ministerial act and when the highest legal authority of that

state, the New York State Court of Appeals upholds that

decision, we have an authoritative statement from the highest

legal authority in New York pertaining to New York

jurisprudence. That should be afforded great deference.

During the execution phase of a non-payment

summary proceeding in Housing Part, the warrant of eviction

is the paper which allows the marshal to physically evict

persons from real property. It is a creature of statute; the New

York State Real Property Actions and Proceedings Law

(RPAPL) and RPAPL §749 in particular. These warrants are

never in a Housing Part file and are not available for public

review. To quote Plaintiff's Amended Complaint quoting a

New York City Housing Court Clerk, “That’s between them

and the judge.”

Many administrative acts have been found to be

outside the pale of judicial immunity. Forrester v. White, 484

U.S. 219 (1988) (employment decisions); Santiago v. City of

Philadelphia, 435 F. Supp. 136 (ED Pennsylvania, 1977)

(administration of juvenile detention facility); Richardson v.

22

Koshiba, 693 F.2d 911 (CA9 1982)(Hawaii state judicial

selection commission denied immunity);

In Lopez v. Vanderwater a judge was held to be

immune from civil suit for his acts which were judicial in

nature, but was not immune from suit for acts which were

non-judicial in nature. Lopez v. Vanderwater, 620 F.2d 1229

(CA7 1980). When a judge’s actions are not judicial acts,

immunity will be denied.

New York State courts have also applied this rule

denying immunity in relation to non-judicial acts taken by

judges. That a judge’s alleged defamatory remarks were a

judicial act raised a question of fact for the jury. Douglas v.

Collins, 152 Misc. 839, 273 N.Y.S. 663 (Sup Ct, Kings Co,

1934), aff'd 243 App Div 546 (2nd Dept 1934), aff'd 267

N.Y. 557, 196 N.E. 577 (1935).

In Kellman v. State of New York, _-N.Y.S. 2d _,

2005 WL 954643, 2005 N.Y. Slip Op. 25155, NYLJ April 26,

2005, p. 18 col.1. Justice Lack of New York Court of Claims,

held New York Supreme Court Justice F. Dana Winslow

liable for acts which occurred after the judicial phase of that

proceeding, for what the court deemed a ministerial act..

Justice Lack wrote, “the judicial nature of the act was

completed when Justice Winslow signed the order of

attachment.”

Judicial acts are protected rather than judicial actors

because the United States Constitution forbids the granting of

titles of nobility. Constitution of the United States of

America, Article I, Section 9. If it were the person of the actor

rather than the act which was protected then this immunity

would be a_ personal privilege unacceptably and

unconstitutionally akin to privileges granted to nobility under

monarchical systems of governance.

VII. DEFENDANT IS NOT ENTITLED TO

IMMUNITY FOR ACTS TAKEN OUTSIDE OF

HER GEOGRAPHICAL JURISDICTION

23

WHICH IS A CLEAR ABSENCE OF ALL

JURISDICTION.

Defendant’s territorial jurisdiction is Manhattan, only.

As exhibited to Amended Complaint, in rendering her final

judgment in NYC91440 02 against tenant only, Defendant

took judicial notice of pending NYC83622/00 in Civil Court

stopping the proceeding to examine contents thereof.

Wherein motion for contempt filed in NYC83622/00 exhibits

her address at 9985 Appletree Place, Thornton, Colorado.

Colorado is time zones away from the territorial jurisdiction

of Defendant. Her territorial jurisdiction does not extend

beyond Manhattan. Colorado is not part of Manhattan.

As was raised to Second Circuit, acting beyond the

reach of one’s territorial jurisdiction was the very reason for

which judicial immunity was denied a New York State town

justice in Maestri v. Jutkofsky, 860 F.2d 50, 52 (CA2 1988),

cert. den. 489 U.S. 196 (1989). Wherein Second Circuit set

forth a test, including knowledge and intent, and as compared

to knowledge and intent of the status quo, for a civil action,

for determining a judge’s immunity — that no reasonable judge

would have thought jurisdiction proper — and— that the judge

whose actions are questioned actually knew or must have

known of the jurisdictional defect — as where a judge

“knowingly acts outside his territorial jurisdiction.” Maestri v.

Jutkofsky, 860 F.2d 50, 52 (CA2 1988), cert. den. 489 USS.

196 (1989).

At least Town Justice Jutkofsky had to look at a map

to determine the clear absence of his jurisdiction. He was

denied immunity because he knew, or must have known, that

his township was not adjacent to a township some two miles

distant. Maestri v. Jutkofsky, 860 F.2d 50, 52 (CA2 1988),

cert. den. 489 U.S. 196 (1989). All Defendant had to consult

was the contents of her own files, if she had forgotten her

statements and conduct on the record. She did not even need

a map.

24

In this case Defendant was acting in the clear absence

of jurisdiction. No reasonable judge could have thought it

proper to exercise such jurisdiction.

In the case of La Pier v. Deyo 100 A.D.2d 710 (3rd

Dept 1984) another New York State town justice was held by

New York State’s Appellate Division to have acted in a clear

absence of jurisdiction when he presided over a case in which

his own brother was the plaintiff. La Pier v. Deyo 100 A.D.2d

710 (3rd Dept 1984). That case at least required reference to

the New York State Judiciary Law which prohibits judges

from hearing cases involving their relatives. La Pier v. Deyo

100 A.D.2d 710 (3 Dept 1984). Defendant’ clear lack of

jurisdiction could be determined from her own statements,

judgments, rendered against Dr. Griesz-Brisson only, and the

official record without any need for further research.

CPLR 4511(a) requires judicial notice without request

of other jurisdictions.

VIII. DEFENDANT WAS DEPRIVED OF

JURISDICTION BY STATUTE OVER NYC91440

02 AND SUBSEQUENTLY THERE IS A CLEAR

ABSENCE OF JURISDICTON.

By statute, Defendant’s subject matter jurisdiction is

limited to certain residential landlord and tenant disputes. She

is not a full judge under New York law and may not grant

certain forms of equitable relief in accordance with the

Constitution of the United States of America, 7th

Amendment. Prime tenant, and only tenant, Dr. Margareta

Griesz-Brisson asserted counterclaims in her answer.

Exhibited as record to Amended Complaint,

petitioners to NYC91440 02 held no privity of contract with

tenant. Jersey Street Associates LLC v. Quality Cleaning

Corporation, N.Y .City Civ.Ct., 2002. [Westlaw]

Tenant’s lease was signed by an agency that does not

and has not existed under New York law .

25

New York’s CPLR §§ 301 and 302, an entity may not

affirmatively use New York Courts until it obtains authority

to do business in New York William L. Bonnel Co., v. Katz,

23 Misc. 2d 1028, 1031 196 N.Y.S. 2d 763, 768 (Sup. Ct.

1960).

Dr. Griesz-Brisson, tenant, has never been sued for

occasions arising out of her lease, by Darrington Realty.

When each New York County L&T Index No. 83622/00 and

New York County L&T Index No. 91440 02 were filed, the

owner of the building housing subject premises, was listed in

New York City records was listed as Darrington Realty, also

exhibited to Kendra Musgrave’s Complaint and Amended

Complaint

There was no chain of title. 200-202 West 107th

Street LLC v. Braun, Civil Housing Court New York County,

NYLJ May 1, 2002, p. 23 col. 2.

The attorney, repetitiously suing on behalf of his

client’s various companies and corporations for alleged debts,

and specifically New York County L&T Index No. 83622/00

and New York County L&T Index No. 91440 02, does not

and never has had a license to collect debt as is required by

NYC Code §20-490. Heintz, et al. v. Jenkins, 514 U.S. 291

(1995), held that an attorney engaged in consumer debt

collection litigation is a debt collector. Second Circuit held

that an attorney seeking collection of rent is a debt collector.

Romea v. Heilberger & Assocs., 988 F. Supp. 712 (SDNY

1997), aff'd 63 F.3d 111 (CA2 1998);

The very limited subject matter jurisdiction Defendant

held under New York City Civil Court Act to enforce housing

code, was then voided by state statute in NYC91440 02.

The subject premises was not covered by a valid

certificate of occupancy and has not been since 1989 as was

court record in NYC91440 02, and almost entirely the record

made before Defendant, and exhibited as record in Amended

Complaint. When a subject premises is not covered by a valid

certificate of occupancy, New York’s Multiple Dwelling Law

26

(“MDL”) §§ 301 and 302 requires “no action or special

proceeding shall be maintained therefore, or for possession of

said premises for nonpayment of said rent.”

Rather than evict, Defendant was required by MDL §§

301 and 302, required Defendant to stop any eviction under

New York County L&T 91440 02. Totaram v. Cordero,

NYLJ, April 16, 2003, p.22, col.3,

Defendant knew subject premises did not have a valid

certificate of occupancy both because the issue was raised

before her and because violations issued by New York City

agencies were in the official database available to her through

the computer in her courtroom.

Pursuant to MDL § 328(3):

“ computerized violation files of the department

responsible for maintaining such files and all other

computerized data as shall be relevant to the

enforcement of state and local laws for the

establishment and maintenance of housing

standards...” “...shall be prima facie evidence of any

matter stated therein and the courts shall take judicial

notice thereof as if the same were certified as true

under the seal and signature of the commissioner of

that department.”

Thus the Court below was required (“shall”, not may)

take judicial notice of the computerized violation files that

were available to it. Exclusion of a printout of such records

was held an abuse of judicial discretion. Hoya Saxa, Inc. v.

Gowan, 149 Misc.2d 191; 571 N.Y.S.2d 179 (App Term

1991).

The clear absence of jurisdiction due to the lack of a

certificate of occupancy was known to JHO Hoyos and further

could easily be verified by checking her computer, which she

was required to do pursuant to MDL §328(3).

All such facts as set forth for above, were known to

Defendant, brought to he attention with certified copies, in

motion Defendant took judicial notice of, and made exhibit to

her written, final judgment rendered against tenant only for

premises and $20,448.35-on July 10, 2003, as exhibited to

Amended Complaint, for tenant’s failure to deposit

$20,445.35 with the court to vacate default judgment rendered

against tenant on May 16, 2003, as set forth Defendant’t

written decision dated June 12, 2003, and exhibited to

Amended Complaint.

There is no statute in the state of New York which

make deposit of funds, in any amount, a condition to vacature

of a default judgment.

It is also unclear how the amount $20,448.35 was

derived. New York State Constitution Article 6 requires civil

courts to be courts of record. New York City Charter §1046

requires record for an JHO’s proceeding. As was exhibited to

Amended Complaint the record made before Defendant on

May 16, 2003 in New York County L&T Index No. 91440 02

was erased. There was no record of Defendant’ rendering her

“default judgment” against tenant. New York State

Constitution thus prohibits any civil court proceeding without

a record.

Also, such “default judgment” was rendered May 16,

2003 by Defendant against Dr. Griesz-Brisson for $20,448.35

without any supportive affidavit or service thereof as is

required by CPLR §3215(f) and CPLR §3215(g)(4)(i). It

never happened. There is no affidavit.

New York’s CPLR §3215(b) requires, “The judgment

shall not exceed in amount or differ in type from that

demanded in the complaint or stated in the notice served

pursuant to subdivision (b) of rule 305.”

Defendant’ “default judgment” rendered against Dr.

Griesz-Brisson only, was approximately $13,000 over the

amount claimed in the petition.

Defendant then enforced that judgment against Dr.

Griesz-Brisson for $20,445.35 and possession of premises,

with a warrant of eviction she then added Kendra Musgrave’s

to, against whom the action had been dismissed with

28

prejudice, and whose residence was outside her geographical

bounds, and as a partner joined in interest to Dr. Griesz-

Brisson, as well as John Doe and Jane Doe as tenants. In fact,

John Doe and Jane Doe undertenants was specifically crossed

out, as was exhibited to Kendra Musgrave’s Complaint and

Amended Complaint.

As argued in appellant’s brief it is a misdemeanor in

the State of New York to declare a partnership when none

exists.

If this does not amount to a clear absence of

jurisdiction, then that doctrine can only be truly applied to a

Libyan judge appointed by his colonel, who enters the United

States by some covert method, and starts issuing edicts and

proclamations in the middle of the night.

IX. COURT FAILED, TO PROTECT DOCUMENTS,

EVIDENCE, AND PRIMARY WITNESS TO BE

USED FOR TRIAL, WHICH WAS UPHELD BY

SECOND CIRCUIT, THUS DENYING

PLAINTIFF DUE PROCESS.

Sarbanes-Oxley Act of 2002, P.L. 107-204, July 30,

2002, requires the preservation of documents to be used for

trial. Plaintiff's only evidence was the underlying case

NYC91440 02 and such documents and stored information of

tenant. Without access to legal research, and not within time

Plaintiff had to file action, without access to legal research,

Plaintiff copied wholesale tenant’s legal arguments with its

New York citations of statute and caselaw, as is evidenced by

her Complaint and Amended Complaint. Sometimes Plaintiff

changed pronouns to fit her case, other places she did not.

Self-evidently, Plaintiff's needed such information and record

to proceed but to prove a negative, to enjoin such warrant of

eviction, which is unavailable to the public, until Plaintiff's

name was removed. As raised to Second Circuit, without

such items, including, the record being her primary witness,

29

as well as tenant, then unavailable, Plaintiff could not

proceed.

Wherefore, after being denied access to the law,

Plaintiff was then denied access to the court, any court, by

order of Second Circuit below. To date, Plaintiff has not

received restoration for the bank account illegally seized with

any judgment served even to Plaintiff's bank. Whatever

property Plaintiff could hope to obtain or preserve is then at

risk without recourse; and for any debts tenant may have

incurred, or, anyone else, for that matter, for Defendant’s

warrant of eviction.

CONCLUSION

Consistent through the cause of action and through

this proceeding are gross violations to Plaintiff's civil rights,

then denied access to proof thereof, but to protect

constitutional guarantees, all the while Plaintiff is forced to

prove a negative; and then finally denied access to any federal

court for repair under federal statute, by Order of Second

Circuit under the Rooker-Feldman doctrine of abstention, and

when Plaintiff has no legal standing to appeal an

administrative decision she was ruled a stranger to.

That this is what Rooker-Feldman doctrine has

become, needs to be addressed by this Court for the good of

the nation and in the interest of justice. There is simply no

other court to repair to.

Respectfytly submitted,

9985 Appletree Place

Thornton, Colorado 80260

303-452-2854

30

IN THE

SUPREME COURT OF THE UNITED STATES

KENDRA MUSGRAVE,

Petitioner(s),

against

INEZ Hoyos, HON., ADMINISTRATIVE LAW

JUDGE, HOUSING PART Q, CIVIL COURT

OF THE CITY AND COUNTY OF NEW YORK,

|

Respondent(s) |

|

On Petition For Writ Of Certiorari to the

United States Court of Appeals

For the Second Circuit

APPENDIX

KENDRA MUSGRAVE

Pro Se

9985 Appletree Place

Thornton, Colorado 80260

303-452-2854

ARTA AORN, AE ARR ARTISTRY TNT TIS.

TABLE OF CONTENTS

Order of the United States Court of Appeals for the Second

Re MII 0s PIs scccsecdesoscscscscasccosscocccsens A-]

Order of the United States Court of the Southern District of

New York, September 18, 2003..............csscsssssseeees A-4

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHERCOURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR INANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the

Second Circuit, held at the Thurgood Marshall United States

Courthouse, Foley Square, in the City of New York, on the

21* day of December, two thousand and four.

PRESENT:

Hon. John M. Walker, Jr.,

Chief Judge,

Hon. Rosemary S. Pooler,

Hon. Richard C. Wesley,

Circuit Judges.

X No. 03-9005(L), 03-

9219(con); 03-

9201(con)

KENDRA MUSGRAVE,

Plaintiff-Appellant,

v.

INEZ HOYOS, Hon., Administrative Law

Judge, Housing Part Q, Civil Court

of the City and County of New York,

Defendant-Appellee.

Xx

APPEARING FOR APPELLANT: Kendra Musgrave, pro se,

Thornton, CO

APPEARING FOR APPELLEE: Michelle Aronowitz, Deputy

Solicitor General (Eliot Spitzer, Attorney General for the

State.of New York, Carol Fischer, Assistant Solicitor

General, on the brief), New York, NY

Appeal from the United States District Court for the Southern

District of New York (Gerard E. Lynch, District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the

judgment of said district court be and it hereby is

AFFIRMED.

Plaintiff-appellant Kendra Musgrave, pro se, appeals the

September 25, 2003 judgment of the district court dismissing

Musgrave’s action against New York City Housing Court

Judge Inez Hoyos for lack of subject matter jurisdiction.

Musgrave’s complaint, filed pursuant to 42 U.S.C. § 1983,

alleges that Hoyos violated her civil rights by, inter alia,

issuing a default money judgment and eviction order against

Musgrave. We review de novo a district court’s

determination that, as a matter of law, jurisdiction does not

exist. See Moccio v. New York State Office of Court Admin.,

95 F.3d 195, 198 (2d Cir. 1996).

Having carefully reviewed the record and the parties’

arguments in this case, we agree that the district court lacked

subject matter jurisdiction over this complaint.

As an initial matter, any decision as to the merits of

Musgrave’s claims would necessarily require the district court

to review the propriety of Judge Hoyos’ orders, a task the

lower federal courts are not empowered to do. See District of

A-2

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486

(1983) (holding that district courts “do not have jurisdiction . .

. over challenges to state court decisions . . . even if those

challenges allege that the state court’s action was

unconstitutional”); Rooker v. Fidelity Trust Co., 263 U.S.

413, 416 (1923) (holding that district court may not sit in

direct appellate review of a state court judgment because

“(t]he jurisdiction possessed by the District Courts is strictly

original”).

In addition, as the district court observed, it is well settled that

judicial officers like Judge Hoyos are entitled to absolute

immunity from civil suit for any acts taken in their official

capacities. Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding

that judges could not be held liable for damages under § 1983,

even for allegedly unconstitutional acts). This immunity

serves to preserve judicial independence by shielding judges

from the inhibitory threat of economic sanction. See id.; Hili

v. Sciarrotta, 140 F.3d 210, 213 (2nd Cir. 1998). Asa

consequence, persons claiming to have been injured by

judicial misconduct must seek alternative forms of relief such

as state appellate or collateral review, judicial misconduct or

disciplinary proceedings, or working to prevent the judge’s re-

election.

For the foregoing reasons, the judgment of the district court is

hereby AFFIRMED and Musgrave’s motion to strike

appellee’s brief is DENIED.

FOR THE COURT:

Roseann B. MacKechnie, Clerk

By:

Lucille Carr, Deputy Clerk

A-3

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

X

KENDRA MUSGRAVE,

Plaintiff, 03-CV-5994 (GEL)

v. ORDER

INEZ HOYOS, Hon.,

Administrative Law

Judge, Housing Part Q, Civil Court

of the City and County of New York,

Defendant

X

GERALD E. LYNCH, District Judge:

In this Civil Rights action, plaintiff Kendra Musgrave

alleges that defendant The Hon. Inez Hoyos, a Judge in New

York City Housing Court, violated her due process rights by

adding her name to a default money judgment in connection

with an eviction proceeding. Judge Hoyos has moved to

dismiss the complaint under the Rooker-Feldman doctrine and

on the basis of a judge’s absolute immunity from suit. The

motion will be granted.

Even accepting as true the allegations of Musgrave’s

complaint, as is required in considering a motion to dismiss,

this Court has no power to grant her relief. The acts

complained of here were clearly “within [the] judicial

jurisdiction” granted to Judge Hoyos. Pierson v. Ray 386

U.S. 547, 554 (1967). Therefore, she is immune from suit on

account of them. Id. Furthermore, what Musgrave seeks,

essentially, is review of Judge Hoyos’s decision to enter a

judgment against her. However, “a United States District

Court has no authority to review final judgments of a state

court in judicial proceedings.” District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482 (1983). Plaintiff's

remedy, if any, must be with appellate review of the

judgments entered against her within the state court system,

id, at 476, and, if not thereby satisfied, by seeking review in

the United States Supreme Court, id at 482.

Accordingly, the complaint is dismissed for lack of subject

matter jurisdiction.

SO ORDERED

DATED: New York, New York

September 18, 2003