Petition for Writ of Certiorari — Lipko v. Christie

Supresne Court, U.S.

i FILED

+1)

“02 328 we 172002

No. PPA BE OF THRE TRIS

In The

SUPREME COURT OF THE UNITED STATES

In Re A. LIPKO JR.

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M. CHRISTIE, E. LIPKO

Petition for a Wnit of Certiorari to the

United States Court of Appeals for the

Second Circuit

PETITION FOR A WRIT OF CERTIORARI

A. LIPKO JR.

P.O. BOX 536

NEW HAVEN, CT 06503

(NO PHONE)

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VESTIONS PRESENTED

Does Rooker v. Fidelity Trust Co. apply to this case,

Lipko v_ Christie, E Lipko?

Does refusing to distribute the residue of the Estate

after being ordered to distribute the residue on

8/14/95 by the Probate Judge (B. Joy), constitute

FRAUD?

Does prosecution without probable cause initiated by

defendants with false information in civil proceeding,

with actual malicious purpose constitute a “seizure”

necessary to establish his claim under 42 U.S.C.A.

Sec. 1983 for deprivation of Liberty and property

under the Fourth, Fifth, Eighth and Fourteenth

Amendments?

LIST OF PARTIES

PETITIONER

A. LIPKO JR.

P.O. BOX 536

NEW HAVEN, CT 06503

RESPONDENTS:

M. CHRISTIE

1600 BEAN RD.

PLAINFIELD, VT

E. LIPKO

16 MAIN ST.

FORT PLAIN, NY

(LAST KNOWN ADDRESS)

ATTORNEY OF RESPONDENTS:

CHRISTINE GONILLO

185 N. BROAD ST.

MILFORD, CT 06460

TABLE OF CONTENTS

QUESTIONS PRESENTED... i

ES ee li

TABLE OF CONTENTS... iii

TABLE OF AUTHORITIES... iV-Vii

a, NET Vili

os. crc l

STATEMENT OF THE CASE... 2

ARGUMENT - STANDARD OF REVIEW

REASONS FOR GRANTING THE WRIT. 7

CONCLUSION ..000..0..oococccocccsccccccceseeeeeeeeec. 30

iii

TABLE OF AUTHORITIES

CASES

Adickes v. Kress & Co. 398 U.S. 144.........:: ee 20-29

Albright v. Oliver , 510 U.S. 266 (1994)..........-..----» 22,23

Armstrong v. Manzo, 380 U.S., @ 551.....-...-: ee 8

Atl Coast R.R.Co. v Brhd.Loc.Eng, 398 U'S. 281............. 18

Baldwin v. Hale, 1 Wall. 223, 233...........:-::s:eeeeseseee ete 8

Bell v. Burson, 402 U.S. 535..............-: ee 11,12,14,15

Boddie v. Connecticut, 401 U.S.,371..........-.: eee 12,14

Brown v. Chastain 416 F.2d 1012................: 16,17,18

Central of Georgia v. Wright, 207 2 Rl : : aeeeen renner 13

Coe v. Armour Fertilizer Works, 237 U.S.413.......-.......--- 13

D.C. Ct.of Appeals v. Feldman, 460 US. 462......16,17,18,20

Dombrowski v. Pfister, 380 U.S. 479.........-.-:-s rete 17

Ex. Bd. of Eng. A.& S.v. F.de Otero,26 U.S. 572.............-- 19

Flagg Bros. Inc. v. Brooks 436 U.S. Pei aucccssreesecaienetnnans 19

Fox News Net.v. Time Wamer Inc. 062 F.Supp.399......... 26

Franks v. Delaware, 438 U.S. 154.............:::: settee 30

Fuentes v, Shevin.ET AL, 407 U.S. 67.........s0eeee 10,11

—

Vv

2g hgh RAL A

Ee, FRIAR AAD i

Gallo v. City of Philadelphia, 161 F.3d217.... 22

Gerstein v. Pugh 420 US. ] 03, 95 S.Ct @ 862... 23,26

Gibson v. City of Seattle Police 472 F.72 1220... 26

Goldberg v. Kelly, 397 US., @ 262.0000 12,13,14,15

Gresham Park C.Org. v. Howell 652 F.2d 1227...16,19,20,21

Heck v. Humphrey, 512 U.S.477..000.000000000 21,22

Henry v. Ist Nat’] Bank of Clarksdale 595 F.2d 291... 17

Herrera v. Valentine 653 F.2d 1220... 27

Hilfirty v. Shipman, 91 F.3d 573 (3d Cir. 1996)... siiiciee 22

Hill v. California, 401 U.S..797..00oo occ 23

Huffman v. Pursue, Lid. 420 U.S. 592.000 8,16

In re FRG, Inc. , 919 F2d 850, (24 CBC 2d 40)... 28

In re SoudersIBC Ed Pa)75Br427 ae 28

ne Ruffalo, 390 U.S. 544, 550-551... 10

Joint Anti-Fascist Ref Com v. McGrath,341 U.S. 123... 9

Juidice v. Vail, 430 US.327.0000 17

LaPrease v. Raymours Furn. Co. 315, Supp 716... 1]

Mitchum v. Foster, 407 U.S. 7 oe 17,28

Mullane v, Central Hanover Trust, 339 US. 306............. 8,10

Murphy v. Lynn, 118 F.3d 938 (2nd Cir. sp) ne 22,23

Polk County v. Dodson, 454 US. 31D... ..ceseecsesecrseeeeeeeeeeess 26

Pierce v. Multnomah County, Oregon, 76 F.3d 1032Z........». 23

Randone v. Appellate Dept. 5 Cal.3d 536......-.::cccsecereeeeeees 13

Reeves v. City of Jackson 608 F.2d 644........scesssecessensneenees 30

Rooker-Feldman Doctrine. ........-.---:sserser 16,17,18,20

Rooker v. Fidelity Trust Co. 263 U.S. 413......... 16,17,18,20

Schroeder v. New York, 371 U.S. 208, 212........::sseeeeeeeeeseees 8

Seewrity Trust Co. v. Lexington, 203 U.S. 323......-.:e20e2+ 13

ko v. Chase Manhattan Bank 461 F2d 699...........-.+ 21

Serzys

Shaw v. Garrison 467 F.2d 113........---080e er icone 24

Singleton v. City of New York, 632 F.2d 185...........000000000 26

Sniadach v. Family Fin.Corp. 395 U.S.337.....1 1,12,13,14,15

Speight v. Slaton, 415 U.S. BBB....ceccocesscovevscsrncncnsssreosnveresenees 7.

Spurlock v. Satterfield, 167 F.3d 995 (6 Cir. 1999)........-. 19

Stanley v. Illinois, 405 U.S. 645, 647......ccscecseseeeseeereesens 9,15

Tang v. App. Div. of NY Supreme Ct. 487 if ts oe

vi

4

oe

7

¥

a

;

4

5 cl Sata Ye Pan yD abe

Velazquez v. City of NY 960 F. Supp. 766...................... 27

Wheeler v. Cosden Oil & Chemical 734 F2d 254... 30

Whitney v. Traylor, 85 F.3d 581... 16,24

Windsor v. McVeigh, 93 U.S. 274.0000. 8

Wisconsin v. Constantineay, 400 U.S. | 10

Wolf v. Colorado 338 U.S. 25.......ccccceccccssssessssoseesvecseeseesee. 26

Younger v. Harris, 401 U.S. 433, 437........0.000000- 17

U.S. Constitution Amendment I... 8,24.25,30

Amendment IV.......... 8,19,23,24,25,26,30

Amendment V..................... 9,14,25,26,30

Amendment VIII... co.cc... 8,25,27

Amendment XTV..... 7,8,9,10,1 1,12,14,17,19,20,25,27,30

42 U.S.C.A. Section 1981 & 1985.00.00. 5

Section 1983....5,8,18, 19,20,22,23,24,26,27,28,30

Title 28: 1343, Civil Rights... 0..ccccccccccsses-. 5,19,20,18,27

vii

ORDERS

1. The Probate Judge (B. Joy) Ordered the Distribution

of the Estate on 8/14/95.

2... The temporary injunction was denied on 4/8/96.

3. The State Superior Court, Judge Curran, after trial

issued a permanent injunction NOT to appeal his Order to a

higher Court on 8/15/97.

4. The State Appellate Court denied the permanent

injunction on 12/10/97, but to do this, Lipko had to violate

the Order of Judge Curran.

5. The State Appellate Court Ordered dismissal of

appeal A.C. 17959, on 8/31/98.

6. The U.S. District Court dismissed on 8/18/99.

7. The U.S. Appeals Court dismissed on 4/6/00.

8. The Supreme Court of the United States Ordered

petition for a Writ on 7/5/00, docketed on 11/29/00.

9. The U.S. Supreme Court of the United States Ordered

not to hear Writ on 1/22/01.

10. State Superior Court Denial Vacation of Judgment,

9/10/01.

11. Appellate Dismissal of A.C. 22365 on 2/20/02.

12. Appellate Order of Monies Sanctions in the amount

of $1,485.00, against Petitioner, on 3/20/02.

13. | The State Superior Court Judge Monie J. Issued an

Order to sell Plaintiff's family home on 6/15/02.

Vill

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JURISDICTION

The statutory authority for issuance of extraordinary

writ of the Court’s Appellate Jurisdiction is 28 U.S.C.

Section 1651(a), 2241 or 2254(a). A writ will be granted with

respect to any claim that was adjudicated in a State court

proceeding when the adjudication of the claim (1) resulted in

a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined

by the Supreme Court of the United States; or (2) resulted in

a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State

Court proceeding; or (3) there is an absence of available State

corrective process; or (4) circumstances exist that render such

process ineffective to protect the rights of the applicant.

The jurisdiction of this Court is invoked under the

provisions of 28 U.S.C. Section 1253. Direct appeal to the

Supreme Court from any decision under Section 1253 of this

Title, holding unconstitutional in whole or in part, any Act of

Congress, shall be taken within thirty days after the entry of

... final order, judgment or decree. The record shall be made

up and the case docketed within sixty days from appeal

taken.

The 2" Circuit issued its certified judgment on June

13, 2002, and this petition for a writ of certiorari has been

filed within 90 days of that date. The court has jurisdiction to

review the 2™ circuit’s decision under 28 U.S.C. 2101

&1253.

Petitioner invokes the jurisdiction of this court under

42 U.S.C. Sec. 1983 and 28 U.S.C. Sec 1343(3a)(4), which

applies equally to personal liberties or property rights; and

that jurisdiction is not barred by some other statute. The Act

of Congress is the substantive basis.

imei asia

STATEMENT OF THE CASE

a The Nature of the Case is an Estate. The Testator

died on May 02, 1993. When the Petitioner produced bank

accounts in the amount of $95,014.73, he was refused any

opportunity in Probate, Superior, Appellate and Supreme

Courts (App. 55) to have these bank accounts looked into.

Malfeasance in the Estate involved the Succession Tax,

which was filed 7 months late. Total taxes, Interest,

including Penalty due: $22,208.11. First Attorney, Henry

Maretz was removed by the Probate Judge (B. Joy). The

Probate Judge himself resigned when the permanent

injunction was issued 8/15/97. He had one year left to serve.

Plus, Gonillo had the Family House sold before the

Inventory was turned in to the Probate Judge.

2. On 8/14/95, the Probate Judge (B. Joy) closed the

Estate and Ordered the Distribution of the Estate. App. 1-3.

On or about 2/29/96, M. Christie had Sheriff W. Stuart serve

on A. Lipko Jr./Defendant, an application for temporary or

permanent injunction and count II vexatious litigation. App.

52-54. The purpose of the injunction was to prevent

Defendant from appealing to a higher court to expose the

material fact that the Probate Judge (B. Joy) closed the Estate

on 8/14/95 and Ordered the distribution. Also, to have

Defendant pay for all attorney fees and other estate costs.

Gonillo, Christie and E. Lipko SEIZED Defendant, and then

forced him to plead in the Superior Court Milford. (See

Motion for TRO, dated 4/10/02, Exhibit T; Motions to

Dismiss, Strike, Objection to Strike from Jury Docket,

Dismissal for Lack of Diligence, Dismiss the Temporary

Injunction). App. 36. All further reference to Exhibits can

be found in the Motion for TRO. The temporary injunction

was denied on 4/8/96. (App. 4-6, Tr. Rush, 4/8/96). All

other Defendant’s Motions were denied, and Defendant was

FORCED to go to Trial, and was prosecuted, without

probable cause, that they “could not close the Estate because

Defendant keeps appealing.” Gonillo and Christie kept

silent on the material fact that the Probate Judge closed the

Estate on 8/14/95, and Ordered them to distribute the

Residue of the Estate. (App. 7-1 1, Tr., Curran, 5/1/97).

3. The case was heard by the Court, Judge Curran, and

on 8/15/97, Gonillo, Christie, and E. Lipko got a Fraudulent

State Court Judgment, part of which states a claim for:

“$43,638.55 in damages against Defendant, and

Plaintiff/Christie has established a claim for vexatious

litigation. However, the Court reserves decision of damages

until a hearing in damages is held... The Court therefore

permanently enjoins the Defendant from filing any further

motions and/or appeals to further delay the closing of the

Estate.” App.50,51. Gonillo, Christie and E. Lipko had no

reasonable hope of obtaining the temporary or permanent

injunction, and FORCED Defendant to appeal the judgment

of the Superior Court to the Appellate Court, which denied

the permanent injunction, 12/10/97 App. 12.

4. The Case was removed to the District Court, by

Plaintiff/Lipko on 8/28/98, by filing a Complaint for Abuse

of Process and Malicious Prosecution. The District Court

Dismissed on 8/18/99, and Appeal was taken to the 24

Circuit. The Appeals Court affirmed the dismissal of the

District Court on 4/6/00, and an Appeal was filed on 5/26/00

in the Supreme Court of the United States. The Supreme

Court had jurisdiction from 4/6/00 to 1/22/01, finally

denying Petition for Writ of Certiorar) App. 29.

z. Defendants/Gonillo were Ordered by the Supreme

Court to file a Brief in Opposition on 11/29/00. Instead of

filing a Brief, on 12/7/00, they filed an affidavit of closing

the Estate with the Probate Court. The Probate Judge com-

plied with Gonillo’s wishes and accepted the affidavit of

closing of the Estate, 5 1/2 years after Gonillo and Christie

were Ordered to distribute the residue. The Probate Judge

that accepted the affidavit of closing is a woman, but no

§ distribution was made to this Reneficiary. App. 21.

6. Sometime in May, 2000, there was a hearing in

damages in the State Court, Milford. Plaintiff avers that he

~ was not under the subject matter jurisdiction or the personal

jurisdiction of State Courts, because Plaintiff was under the

jurisdiction of the Supreme Court of the United States; and

he was not at the hearing in damages. (See Motion for TRO,

Exhibits C,D & E).

4 The Fraudulent Judgment Liens, which covered the

full State Court Claim of 8/15/97, were entered on First

Property on 5/26/00. App. 13-14, 15-16, 17-18, 19-20. On

8/28/01, additional Fraudulent Judgment Liens were placed

on Second Property. App. 25-26, 27-28.

8. Plaintiff avers that the Fraudulent Judgment Liens

were uncovered for the first time when Plaintiff went to |

Town Hall on 7/20/01 to pay taxes. Plaintiff avers that he |

sent to Superior Court, Milford, CT on 7/20/01, a Motionto —

=i Open and Set Aside the Judgment. App. 22, 23.

—9. Motion to Vacate the Fraudulent State Court

Judgment of the Milford Superior Court was filed on 8/7/01.

Defendant received a new revived State Court Complaint

and Summons on 9/4/01. Milford Superior Court was sent

Notice of Removal toU.S. District Court on or about 9/6/01.

10. _ District Court Judge Underhill Remanded to State

Court on 9/26/01 sua sponte. Motion to Vacate Fraudulent

State Court Judgment dismissed by Superior Court on

9/10/01; and appealed to Appellate Court on 10/1/01. |

Appellate Court Ordered Defendant to file Brief on 12/7/01. |

Defendant avers that his Brief was filed on 12/3/01, and that ©

he filed all the other documents timely.

11. Plaintiff avers that Gonillo, instead of filing a Brief,

on 1/2/02, when it was due, filed two motions in Appellate

Court: (1) Motion for Permission to File Late Bnef; and (2)

13. Appeal was taken to 2™ Circuit Appeals Court on

5/21/02. The application for an interlocutory injunction,

TRO, and declaratory relief was heard before a three-judge

declining to intervene in a State proceeding to enjoin the

pending State civi] Proceeding. App. 35.

to Title 28 U.S.C Secs. 2101 and 1253.

15. Plaintiff has filed an Independent Action for Fraud

Upon the Court — Extrinsic Fraud in the U.S. District Court.

Jistrict Court Judge Underhill has to tule on Fraud Upon the

Sourt. On 5/26/00, Judgment was rendered and entered by

the Superior Court, Judicial District of Ansonia/Milford, in

which Margaret Christie, et al., were Plaintiffs, and this

Petitioner was Defendant, by which it was adjudged that

Judgment Liens (mentioned above) were placed on property.

15. The most recent harassment by law enforcement in

Connecticut occurred on the night of 6/15/02. The Plaintiff's

family was getting in bed when they heard someone with

flashlights going around their house, yelling: “Come out, we

know you’re in there.” Then they heard a loud knock on the

front door, and the voices said: “Open the door. This is the

Police, or we will break the door down”. The Plaintiff

opened the door and two Milford Police Officers ordered the

family out of the home; half-dressed and half asleep.

Plaintiff proceeded to ask the Police Officers why they

ordered the family out of their home into the night at mid-

night. The Police answered that someone had complained

that they saw flashlights on the property. Plaintiff asked:

“Who was the person who complained?” The Police said:

“We investigate all complajnts ...We will ask the questions

from now on.” The Plaintiff and his family use flashlights

every time they arrive at the house when it’s dark. The

Police also had flashlights lit as they went around the house.

a ee fe ee ee ee ee ee pres

17. This is not the first time that the Milford Police ;

Department has come on Plaintiff's property uninvited. In

April of 1999, two Police Officers, a male anda female,ran |

across his property. When Plaintiff came out of his house

and confronted the Police Officers, they ordered him to

produce a driver’s license, stating that they saw flashlights

and thought Plaintiff and family were burglars. Plaintiff ran

into the house, stating that “my family will tell you who

owns this property.” A family member came out to tell the

Officers that “we own the property”. The female Officer

stated that: “You look like a burglar because you have a ski

mask on,” and left the property. Plaintiff had a ski cap on

that night because it was cold, but he had it on the top of his

head, not down over his face.

18. Now, back to midnight, 6/15/02. The two male

Police Officers continued to interrogate Plaintiff and family,

ARGUMENT -— STANDARD OF REVIEW

REASONS FOR GRANTING THE WRIT

1. The Probate Judge (B. Joy) Ordered the Attorney for

the Estate (Gonillo) and the Estate Rep.(Christie) to

3 Prosecutions under unconstitutional statutes. Truax Vv. Raich,

} 239 US. 33; Speight v Slaton, 415 U.S. 333.

This Court has dealt over and over again with the question

of what constitutes “the right to be heard” (Schroeder v. New

York, 371 U.S. 208) within the meaning of procedural due

process. Mullane v. Central Hanover Trust Co., 339 U.S.

306. In the latter case, this Court said that the nght to be

heard “‘has little reality or worth unless one is informed that

the matter is pending and can choose for himself whether to

appear or default, acquiesce or contest.” 339 U.S., @ 314.

4. For more than a century, the central meaning of

procedural due process has been clear: “Parties whose rights

are to be affected are entitled to be heard; and in order that

they may enjoy that right they must first be notified.”

Baldwin v. Hale, 1 Wall. 223, 233. See Windsor v.

McVeigh, 93 U.S. 274. It is equally fundamental that the

right to notice and an opportunity to be heard “must be

granted at a meaningful time and in a meaningful manner.”

Armstrong v. Manzo, 380 U.S. 545, 552. The Connecticut

replevin process guarantees no opportunity for a hearing

after the seizure of property or the person. Petitioner alleges

that the actions of the State judicial and law enforcement

officials are depriving him of rights protected by the Ist, 4th,

8th and 14th Amendments. Relying upon 42 U.S.C. Sec.

1983, petitioner asks for injunctive and declaratory relief

against the State Court proceedings, on the ground that

Connecticut laws were being unconstitutionally applied by

the State courts so as to cause him great and irreparable

harm, and where the state law is “flagrantly and patently

violative of express constitutional prohibitions, and where

the State proceeding is conducted with an intent to harass or

in bad faith, or the challenged statute is flagrantly and

patently unconstitutional. Huffman v. Pursue, Ltd. 420 U.S.

592. The constitutional right to be heard is a basic aspect of |

the duty of government to follow a fair process of decision

making when it acts to deprive a person of his possessions.

The purpose of this requirement is not only to ensure abstract —

fair play to the individual. Its purpose, more particularly, is

to protect his use and possession of property from arbitrary

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encroachment—to minimize substantively mistaken depriva-

tions of property, a danger that is especially great when the

State of Connecticut seizes Property and the person simply

person’s right to enjoy what is his, free of governmental

interference. Lynch v. Hshld. Finance 405U S 538.

Opportunity to speak up in his own defense, and when the

State must listen to what he has to say, unfair deprivations of

property interests can be prevented. It has long been

recognized that “fairness can rarely be obtained by secret

hearings ... [And no] better instrument has been devised for

embraced the general Proposition that a wrong may be done

if it can be undone ” Stanley v. Illinois, 405 U.S. 645.

7. The right to a prior hearing has long been recognized

by this Court under the 14th and Sth Amendments. This

9

ee

Court has traditionally insisted that, whatever its form,

opportunity for that hearing must be provided before the

deprivation at issue takes effect. E.g., Wisconsin v.

Constantineau, 400 U.S. 433; Mullane v. Central Hanover

Tr. Co., supra, @ 313; Londoner v. City & County of

Denver, 210 U.S. 373; In re Ruffalo, 390 U.S. 544.

8. The Connecticut prejudgment replevin statutes fly in

the face of this principle. The requirements permit a private

party, without a hearing (Connecticut Statute 52-515) or

prior notice to the other party, (52-517), to obtain a

prejudgment writ of replevin, through a summary process of

ex parte application to a court clerk, upon the posting of a

bond for double the value of the property to be seized. (52-

518). The sheriff is then required to execute the writ by

seizing the property. The officer seizing the property must

then keep it for three days. (52-521). During that period the

defendant may reclaim possession by posting his own

security bond for double the property’s value, (52-521) in

default of which the property is transferred to the applicant

for the writ, pending a final judgment in the underlying

repossession action.(52-522, 524). In Connecticut, either

party or-a third person can claim statement of title to the

property, (52-525) and to secure a post-seizure hearing the

party losing the property through replevin must himself

initiate a suit to recover the property. (52-529). App. 47-49.

9. A bond requirement is no substitute for the right toa

prior hearing, that is the only effective safeguard against

arbitrary deprivation of property. While the existence of

these other, less effective, safeguards may be among the

considerations that affect the form of hearing demanded by

due process, they are far from enough by themselves to

obviate the right to a prior hearing of some kind.

10. _—_‘ The right to a prior hearing, of course, attaches only

to the deprivation of an interest encompassed within the 14th —

Amendment’s protection. In this case, Fuentes v. Shevin,

10

407 U.S. 67, the Florida and Pennsylvania Statutes were

applied to replevy chattels in the appellants’ possession. The

replevin was not a final judgment;

household goods.

rived of POssessory chattels

that were within the Protection of the 14th Amendment.

surrenders other propery, apa

bond—the value of the goods

The present case, Lipko, is no different. When State

§ of Connecticut Court Officers seized the Properties of the

@ petitioner’s possession and then agree to return it if he 2

' Since the announcement of this Court’s

decision in Sniadach

prejudgment remedies have come under constitutional challenge throughout the

country. The

tutional by at least two courts.

ours Furmiture Co, 315 F. Supp. 716 (NDNY).

ll

surrenders another, they deprive him of property whether or

not he has the funds, the knowledge, and the time needed to

take advantage of the recovery provision.

13. | The 14th Amendment makes no special requirement

around 3- or 50- day deprivations of property. Any signifi-

cant taking of property by the State is within the purview of

the Due Process Clause. While the length and consequent

severity of a deprivation may be another factor to weigh in

determining the appropriate form of hearing, it is not

decisive of the basic right to a prior hearing of some kind.

14. The 14th Amendment’s protection, however, has

never been interpreted to safeguard only the rights of

undisputed ownership. Rather, it has been read broadly to

extend protection to “any significant property interest,”

Boddie v. Connecticut, 401 U.S., @ 379, including statutory

entitlements. Bell v. Burson, 402 U.S., @ 539; Goldberg v.

Kelly, 397 U.S., @ 262. Clearly, their possessory interest in

the goods, dearly bought and protected by contract, was

sufficient to invoke the protection of the Due Process Clause.

15. The appellants were deprived of such an interest in

the replevied goods—the interest in continued possession

and use of the goods. See Sniadach v. Family Finance Corp.,

395 U.S., @ 342. Their ultimate right to continued posses-

sion was, of course, in dispute. If it were shown at a hearing —

that the appellants had defaulted on their contractual obli-

gations, it might well be that the sellers of the goods would

be entitled to repossession. But even assuming that the

appellants had fallen behind in their installment payments, _

and that they had no other valid defenses, that is immaterial _

here. The right to be heard does not depend upon an advance ©

showing that one will surely prevail at the hearing. “Toone ~

who protests against the taking of his property without due

process of law, it is no answer to say that in his particular

case due process of law would have led tothe same result =~

because he had no adequate defense upon the merits.” Coe

;

12

v. Armour Fertilizer Works, 237 U.S. 413. It is enough to

invoke the procedural safeguards of the 14th Amendment

that a significant Property interest is at stake, whatever the

ultimate outcome of a hearing on the contractual right to

continued possession and use of the goods.

17, Some District Courts have rejected appellant’s con-

stitutional claims on the ground that the goods seized from

reading of Sni h v. Family Finan ., Supra, and

Goldberg v. Kelly, supra, in which this Court held that the

Constitution requires a hearing before prejudgment wage

garnishment and before the termination of welfare benefits

They reasoned that Sniadach and Goldberg, as a matter of

constitutional Principle, established no more than that a prior

hearing is required with respect to the deprivation of such

18. — This reading of Sniadach and Goldberg reflects the

premise that those cases marked a radical departure from

established Principles of procedural due process. They did

not. Both decisions were in the mainstream of past cases,

having little or nothing to do with the absolute “necessties”

Process requirement is limited to the protection of only a few

types of property interests While Sniadach and Goldberg

* The-‘Supreme Court of California recently put the matter accurately:

~Sniadach does not mark a radical departure in constitutional

States Sa the past procedural due process decisions of the Ur aed

States Supreme Court.” Randone y. Appellate Dept. 5 Cal. 3d 536.

13

emphasized the special importance of wages and welfare

benefits, they did not convert that emphasis into a new and

more limited constitutional doctrine.’ Nor did they carve out

a rule of “necessity” for the sort of nonfinal deprivations of

property that they involved. That was made clear in Bell v.

Burson, 402 U.S. 535, holding that there must be an

opportunity for a fair hearing before mere suspension of a

driver’s license.

19. The household goods, for which the appellants

contracted and paid substantial sums, are deserving of

similar protection, while a driver’s license, for example,

“may become indirectly essential in the pursuit of a

livelihood.” No doubt, there may be many gradations in the

“importance” or “necessity” of various consumer goods.

Stoves could be compared to television sets, or beds could be

compared to tables. But if the root principle of procedural

due process is to be applied with objectivity, it cannot rest on

such distinctions. The Sth and 14th Amendment speaks of

“property” generally. And, under our free-enterprise system,

an individual’s choices in the marketplace are respected. It

is not the business of a court adjudicating due process rights

to make its own critical evaluation of those choices and

protect only the ones that are “necessary”.*

7 a ee

20. Aprior hearing always imposes some costs intime, _

effort, and expense, and it is often more efficient to dispense

with the opportunity for such a hearing. But these rather

ordinary costs cannot outweigh the constitutional right. See

eT ee |

> Goldberg v. Kelly, 397 U.S. 254. Of course, the primary issue in

Goldberg was the form of hearing demanded by due process before

termination of welfare benefits; the importance of welfare was directly

relevant to that question.

* The relative weight of liberty or property interests is relevant, of course.

to the form of notice and hearing-required by due process. See Boddie v. ©

Connecticut, 401 U.S. 371. But some form of notice and hearing— .

formal or informal—is required before deprivation of a property interest

that “cannot be characterized as de minimis.” Sniadach , Supra, @ 342.

14

Bell v. Burson, Supra, @ 540-54]: Goldberg y. Kelly, supra,

@ 261. Procedural due Process is not intended to promote

21. The Connecticut prejudgment replevin Statutes serve

no such important governmental or general public interest.

22. The State of Connecticut Statutes 52-5] 5-525,

abdicate effective control over state power. Private parties,

serving their own private advantage, may unilaterally invoke

State power to replevy goods from another. No official

23. The plaintiffs seized petitioner on 2/29/96, and

caused petitioner to attend 40 court appearances over 6

years. Petitioner alleges that malice is implied “by the lack

of probable cause” in the underlying prosecution of his 4th

Amendment rights. Gonillo and Christie made material

misstatements of fact: “They cannot close the Estate because

Lipko keeps appealing,” in support of the prosecution.

Whitney v. Traylor, 85 F.3d 581. Knowingly making false

statements to obtain prosecution can lead to a 4th Amend-

ment violation. U.S. v. Martin, 615 F.2d 318. App.8, 9,10.

24. District Judge Underhill denied the Petitioner’s TRO

stating, “Section 1983 may not be used as a substitute for the

right of appeal in the State Courts, ... are in all liklihood

barred by the Rooker-Feldman Doctrine, ... this Court lacks

subject matter jurisdiction over them by operation of the

Rooker-Feldman Doctrine.” Numerous courts have inter-

preted Rooker as a broad rule that federal district courts have

no jurisdiction to entertain a claim made by the losing party

in state court that would in effect nullify the state court

decision. Brown v. Chastain 416 F.2d 1012. However, the

district court’s lack of appellate jurisdiction is to be distin-

guished from a separate suit based on constitutional depri-

vations effectuated by the judgment. Gresham Park

Community Organization v. Howell 652 F.2d 1227.

Brown’s test based upon its interpretation of Rooker, is

the district court would have no jurisdiction to enjoin the

enforcement of the state court order. However, the law in

this area is confused by, a conflict between the Brown line of

cases, and on the other, Supreme Court decisions which, in

situations identical, have found abstention proper, thus

implicitly holding that there is federal court jurisdiction.

Huffman v. Pursue Ltd. 420 U.S. 592. (abstention proper,

where plaintiff essentially sought to enjoin enforcement of

state court injunction) In Lipko the state trial court issued a

pemanent injunction and a judgment. In Rooker , the federal

plaintiffs sued in district court praying that a state court

16

judgment be declared void on constitutional grounds. In

Lipko, injunction violated the Constitution of Connecticut,

Article 1, Sec.10, and the due process, and eq ion

provisions in the 14th Amendment of the U.S. Constitution.

It denied Lipko the right to appeal a judges deeision,and, was

motivated in bad faith and harassment, and the State law is

flagrantly and patently in violation of express itutional

prohibitions. Dombrowski v. Pfister 380 U.S. 479; juice v.

Vail, 430 U.S. 327. (abstention proper where plaintiffs.

sought to enjoin enforcement of state court contempt order).

In Lipko, this Court is asked to nullify the State-Court-Order

of Sanctions, and Vacate the Judgment Liens. However,'to

abstain is implicitly to assert that the Court has power te hear

the case if the Younger exceptions existed. Mitchum v. |

Foster 407 U.S. 225. The Brown rule is further castin-douht

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

(Henry Il). In Henry I, a group of white oe in

state court to enjoin a boycott of their stores. The state’s

defendants instituted a 1983 action in federal-court. Under

the Henry opinions, federal courts in such situations, have no

jurisdiction until a state court judgment is entered; under

Brown, district courts have no jurisdiction to modify the

effect of a state court judgment. If Brown-is-correct,then

Henry I should have held the district court to be forever

without power to hear the case and Henry I sheuld have

remanded for dismissal for lack of jurisdiction. '

25. The Brown rule also implicitly cer ag

following Mitchum v. Foster, 407 U.S. 225, in which the

Supreme Court held that Sec. 1983 suits are-an-exception to

28 U.S.C. Sec. 2283; under Mitchum, Sec. 2283 does not bar

a federal injunction against enforcement of a-State

judgment. E.g. Huffman; and Henry I, 2, 300. We, hence,

are confronted with conflicting precedents: The Brown

cases on the one hand; the abstention, res judicata, Mitchum,

and Henry cases on the other. Brown’s conflict with

numerous Supreme Court cases and with the weight of Fifth

Circuit authority compels us to reject Brown. With respect

17

that accorded it by Brown, Rooker, also, would conflict with

the above cases, including Supreme Court decisions which

would have overruled Rooker sub silentio. There are two

ways to read Rooker so that it does not conflict with the

cases discussed supra. First, Rooker could have tumed upon

the fact that the federal plaintiffs prayed for the State court

judgment to be declared null and void (as violative of the

Constitution), See Tang v. Appellate Division of New York

Supreme Court, 487 F.2d 138, if, instead, the plaintifs had

prayed for an injunction enjoining enforcement of the

judgment, then under this theory, Rooker would not have

relied on the district court’s lack of appellate jurisdiction.

The difference, obviously, is that in the former situation, but

not the latter, the district court was asked to vacate the State

judgment, an exclusively appellate act. If this was the theory

underlying Rooker, then Rooker was overruled by Fed.R.

Civ. P. 8, enacted in 1938, under which complaints should

be read liberally to do substantial justice.

26. Regardless of which way Rooker is read, the precise

language of the complaint is not crucial, since we construe

complaints liberally. Second, if the district court has original

jurisdiction, and does not have appellate jurisdiction, district

courts are courts of limited jurisdiction. Atlantic Coast Line

R.R. Co. v. Brotherhood of Loco. Eng. 398 U.S. 281. It is to

this issue, whether the district court has original jurisdiction,

that Plaintiff now turns. District Courts determine juris-

diction under Sec. 1343(3) as of the date the federal

complaint was filed, 3/19/02, at which point the state court

had issued its dismissal and refused to hear the appeal,

Ordered the hearing on Sanctions against the Plaintiff on

3/20/02, motivated by bad faith and harassment, and the state

law is flagrantly and patently in violation of express

constitutional prohibitions, 42 U.S.C. Sec. 1983. A complete

discussion of Rooker is found in “Memorandum of Law in

Support of Motion in Objection to a Motion to Dismiss,”

dated 5/20/02.

27. Here, the question of original jurisdiction turns on

whether Plaintiff's complaint is a separate suit, and is

sufficient to give the District Court jurisdiction and 28

U.S.C. Sec. 1343(3) which provides: the district courts shall

have original jurisdiction of ... civil action ... Any person; ...

citizens ... The language of Sec. 1343 (3) is similar to that of

Sec. 1983, providing a cause of action of deprivations of a

constitutional right under color of State law. The two

sections should be construed identically. Exam. Bd. of Eng.

Arch & Surv. V. Flor 426 U.S. 572. Section

1343(3) was enacted “simply to enforce the substantive

rights created by 1983,” Lynch v. Hshd Fin., 405 U.S. 538.

28. A plaintiff must prove a deprivation of “right secured

by the Constitution” and that the deprivation was under color

of State law. ... To satisfy the first requirement, the plaintiff

must show that the defendants’ action constituted State

actions (assuming that the constitutional right at issue is one

protected only against government infringement).

Bros. Inc. v. Brooks, 436 U.S. @ 155,156, 98 S.Ct.@ 1733.

Amendment 14, Rights Guaranteed: A State court makes a

tuling arguably infringing on the 4th and 14th Amendments’

rights and the ruling is based on a State created prohibitory

tule, be it common law or Statutory, an otherwise private suit

loses its private nature and takes on the requisite state action

necessary for Civil Rights Act Jurisdiction. Gresham Park

Com. Org. v. Howell, 652 F.2d 1227. Gonillo and Christie

prosecuted petitioner at trial without probable cause, because

the Probate Judge Ordered them to distribute the residue of

the Estate and they refused. Petitioner states that Gonillo

and Christie manufactured probable cause, fabricated

evidence, prosecuted, held petitioner in custody of the legal

system despite a lack of probable cause to do so; and that

Gonillo and Christie and others conspired to maliciously

prosecute and testify against petitioner. Among those |

constitutional rights violated was the 4th Amendment.

Spurlock v. Satterfield, 167 F.3d 995. The court, citing an

19

earlier decision said, “The right to be free from malicious

prosecution was a right clearly established under the 4th

Amendment.” Id. @ 1006. Petitioner, states that Defendants

violated petitioner’s 14th Amendment due process rights by

trying to sell petitioner’s home on 6/15/02, with a State

Order. App.56-59.

29. Action with knowledge of and pursuant to state law is

a minimal requirement to satisfy the under color of state law

test for Civil Rights Act jurisdiction purposes, where the

alleged state action is based on a private party’s actions and

such party has no authority or pretence of authority to act as

state’s agent and is not compelled to act for the State. 28

U.S.C.A. Sc. 1343(3); 42 U.S.C.A. Sec. 1983. Gresham

’ Park Com. Org. v. Howell, 652 F. 1227.

30. This Court has consistently held that a private party’s

joint participation with state officials in the seizure of

petitioner’s property is sufficient to characterize that party as

a “state actor” for purposes of the Fourteenth Amendment.

The rule in these cases is the same as in the context of equal

protection deprivation. Adickes v. S.H. Kress & Co. 398

U.S.144 Supra @ 152. Private persons, jointly engaged with

State of Connecticut officials in the prohibited action are

acting “under color” of law for purposes of the statute. To

act “under color” of law does not require that the accused be -

an officer of the State of Connecticut. It is enough that he is

a wilful participant in joint activity with the State or its

agents. United States v. Price, 383 U.S., @ 794. Defendants,

as state actors, in concert with state officers acted jointly

with the State, where there was usurpation or corruption of

official power in securing the property of the petitioner.

31. The Rooker-Feldman Doctrine does not apply in the

Lipko case, for the following reasons: The judgment of

$206,000.00 was never affirmed by the Connecticut

Appellate or Supreme Court. Had the Petitioner appealed

the judgment of the Superior Court to the Supreme Court of

20

Connecticut, and the Court ruled on it, then the judgment of

the Superior Court would be valid. A judgment is not

“immediately enforceable” until the State Supreme Court has

tuled on it on appeal. Gresham Park Communit

Organization v. Howell 652 F.2d 1227. The District Court,

under the circumstances of the Lipko case, has the power to

relieve a party from a judgment, either by motion under Rule

60(b) or by an Independent action because the Petitioner did

not appeal to the Connecticut Supreme Court. However, the

Rule 60(b), while enlarging the power of District Courts over

judgments, does not confer upon District Courts the power to

alter a judgment which has been affirmed by the State

Supreme Court for such alteration would affect the decision

of the reviewing court, which is not within the power of the

District Court to do. Judgments, Rule 60(b). In the

following case it was held that, while certain motions

brought pursuant to Rule 60(b) of the Fed R Civ P have a 1-

year time limitation. Independent actions are not so limited.

Serzysko v. Chase Manhattan Bank (2™ Cir.) 461 F2d 699.

32. The majority’s decision is inconsistent with this

Court’s decision in Heck v. Humphrey, 512 U.S. 477. The

question is, “was whether money damages premised on an

unlawful prosecution could be pursued under Sec. 1983.”

512 U.S. at 480. The Court said the

“common-law cause of action for malicious prosecution

provides the closest analogy to claims of the type con-

sidered here because, unlike the related cause of action for

false arrest or imprisonment, it permits damages for con-

finement imposed pursuant to legal process. ...[A] suc-

cessful malicious prosecution plaintiff may recover, in

addition to general damages, ‘compensation for any arrest

or imprisonment, including damages for discomfort or

injury to his health, or loss of time and deprivation of the

society.””

Id. at 484.

33. In Gallo v. City of Philadelphia, 161 F.3d

217(1998), a Third Circuit case finding pre-trial restrictions

without incarceration to be a seizure. This Court has

recognized the right to seek redress for such misconduct.

As it said in Heck v. Humphrey, 512 U.S. 477, causes of

action such as Mr. Lipko’s, permit citizens to seek

“damages for confinement imposed pursuant to legal

process,” damages which can include “’compensation for

any detention or loss of liberty, including damages for

discomfort or injury to his health, or loss of time and

deprivation of the society.”” 512 U.S. at 486. The Fourth

Amendment is a barrier, which, if it cannot prevent

misconduct, at least provides an avenue for redressing the

injury caused by the misconduct.

34. This Court has said 1983 malicious prosecution

claims are permissible and has intimated that the 4th

Amendment is a vehicle for pursuing such claims. As the

dissent below noted, the Third Circuit in Hilferty v. Shipman,

91 F.3d 573 (1996), after Albright v. Oliver, 510 U.S. 266,

re-recognized the validity of Sec.1983 malicious prosecution

claims. The dissent also noted “the fact that a majority of the

other courts of appeals that have considered the issue, as well

as a great number of district courts in this circuit, have

similarly held that constitutional malicious prosecution

claims survive Albright and that such claims must be brought

under the 4th Amendment.” 163 F.3d at 183.

35. Civil Rights, Sec.114. Since gist of claim for

malicious prosecution is abuse of judicial process, plaintiff

pursuing such claims under Section 1983 must show that

seizure resulted from initiation or pendency of judicial

proceeding 42 U.S.C.A. Section 1983. Murphy v. Lynn, 118

F.3d 938 (2™ Cir.). Const. Amend. 4—Liberty deprivations

regulated by 4th Amendment are not limited to physical

detention. Damages allowed compensatory damages:

$50,000.00. The fact that Connecticut law provided remedy

22

preclude defendant from pursuing Sec. 1983 action against

court officers arising from “seizure” that required that he

attend court appointments. To state claim for tort of

“malicious prosecution” under Connecticut Law, plaintiff

must prove initiation or continuation of proceeding against

plaintiff, lack of probable cause for commencing proceeding,

and actual malice as motivation for defendant’s action.

36. Petitioner alleges that malice was implied “by the

lack of probable cause in his prosecution”. He also says

Gonillo and Christie made material misstatements of fact in

support of the prosecution. Making false statements to

obtain an arrest warrant or prosecution treated as an

independent violation of the 4th Amendment. Pierce v.

Multnomah Cty, Oregon, 76 F.3d 1032.

37. As the Supreme Court stated in Albright v. liver 510

U.S. 266 “deprivation of liberty that go hand in hand with

criminal prosecutions” have “4th Amendment relevance.”

510 U.S. @ 274. In Gerstein v. Pugh, “the 4" Amendment

requires a judicial determination of probable cause as a

prerequisite to extended restraint of liberty” 420 U.S. @ 114

the Court made plain that the liberties protected by that

Amendment included; Pretrial confinement may imperil the

Suspect’s job, interrupt his source of income, and impair his

family relationships. ... protects against unreasonable

“seizures”. It is established that an unreasonable seizure by a

state actor in violation of this Amendment, may be pursued in

a suit brought under Sec. 1983. The Supreme Court of the

U.S. has defined seizure: occurs when governmental

termination of a person’s movement is effected through

means intentionally applied. Violations of this Amendment

requires an intentional acquisition of physical control. A

seizure occurs even when an unintended person or thing is

the object of the detention or taking. Hill v. California, 401

U.S. 797. You may consider the requirement to appear in

court as being a restriction on his liberty. Murphy v. Lynn

118 F.3d 938. The right of Plaintiffs to be secure in their

23 ;

persons and effects, as well as on the property against

unreasonable seizures, The Constitution of the U. S., 4"

Amendment holds: “No right is held more sacred, or is more

carefully guarded, by the common law, ... , ‘The right to

one’s person ... said to be a right of complete immunity... .”

Terry v. Ohio 392 U.S. 1. “The right of the people to be

secure in their ... houses ..., against t unreasonable ... seizures,

shall not be violated ...”. Const., 4” Amendment, Supra.

38. As Justice Ginsburg observed in Albright , a defend-

ant is scarcely at liberty, he remains apprehended, arrested in

his movements, indeed “seized” for trial, so long as he is

bound, to appear in court and answer the States’ charges. He

is equally bound to appear, and is hence “seized” for trial,

when the state employs the less strong-arm means of a

summons in lieu of arrest to secure his presence in court.

39. Injuries compensatory included those associated with

the prosecution, insofar as the officers caused them. Whitney

v. Traylor 85 F.3d 581. Civil Rights 192—To state Section

1983 claim, plaintiff must point to specific federal right. 42

U.S.C.A. Section 1983. Civil Rights —“federally guaranteed

right to be free of malicious prosecution.” Courts 508(7)—

There is a federal right to be free from bad faith state

prosecutions. Shaw v. Garrison 467 F.2d 113 (1972).

40. The Milford Police Department is charged with the

following U.S. Constititution and laws Civil Rigits viola-

tions: Ist Amendment. The two Police Officers decided to

scream and yell at Plaintiff and his family, verbal abuse.

They intimidated them by stating that “a warrant for your

arrest will be issued in the morning. See you in the

morning.” 4th Amendment: One of the Officers physically

held Plaintiff and family in front of their home, while the

other Officer went inside, without their permission, and

searched their home without a search warrant, and without

probable cause. The other Police Officer would not allow

Plaintiff and family to enter their home to see what that

24

Officer was searching for, or what he was taking with him.

Fifth Amendment: The Milford Police deprived Plaintiff and

his family of liberty, by holding them for 2.5 hours and

questioning them; without probable cause; at midnight,

6/15/02. The Officers told Plaintiff and family: “If you left

your home now, and did not come back, we would file a

report only; but if you decide to stay, we will file a warrant

for your arrest and be back in the morning to arrest the both

of you.” Amendment VIII: At 2 A.M. Sunday morning,

both Officers stated that Plaintiff and his family don’t belong

in Milford, CT and should leave. Two Milford Police

Officers, knowingly and intentionally, and with reckless

disregard for the First, Fourth, Fifth, Eighth and Fourteenth

Amendments, entered Plaintiffs property, without probable

cause. The State has an obligation, under the Eighth

Amendment to those under its jurisdiction to be free from

cruel and unusual punishment. The Officers tried to force

Plaintiff and family off their property, after midnight, by

saying they were issuing a warrant for their arrest if they are

still on the property when they came back in the moring

(Sunday morning). Amendment XIV: ...nor deny to any

person ... the equal protection of the law. The Officers stated

that we don’t belong in Milford, CT and should leave. The

14th Amendment imposes a duty on Municipal Police _

Officers to charge and detain only upon ascertaining

probable cause. These two Officers had no probable cause.

They charged Plaintiff and family by information from

someone else, and that information was false; and restrained

them pending their determination after they reviewed the

information that, Plaintiff and family, under duress, gave to

them. They ordered Plaintiff and his family to give them

their name, address, date of birth, and wanted to see a

driver’s license. The purpose of obtaining this information

was to turn it over to Gonillo, which is profiling.

41. Plaintiff has been deprived of a right secured by the

laws of the U.S., Ist Amendment: Gonillo denied Plaintiff

this right to petition the court by having his appeal on

25

2/21/02 dismissed without even being considered. (See TRO,

Ex.I, filed 4/10/02). “... even exercise of right to petition

government may result in abuse actionable under Sec. 1983,

U.S.C.A. Const. Amend. 1; Fox News Network v. Time

Warner Inc. 062 F. Supp. 399 (E.D.N.Y. 1997).

42. Plaintiff has been deprived of a right “secured by the

Constitution and laws of the U.S.” The 4th Amendment

requires of the States, a judicial or neutral determination of

probable cause to seizure as a prerequisite for extended

restraint of liberty, 420 U.S. @ 114, 95 S.Ct. @ 863, and

specifically that an attorney’s(Gonillo) decision to prosecute

is not constitutionally sufficient determination of probable

cause. 42 U.S. @ 112-113, 116-17, 95 S.Ct. @ 864-65.

Before any person is seized by the State of Connecticut,

someone must first have determined that there was probable

cause to prosecute that person. The second is policy; It is

difficult for this Plaintiff to conceive a notion more

repugnant to the ideas of due process than one that Gonillo

need have no basis whatever for prosecution of this Plaintiff,

even trivial ones, but may, without constitutional

disapproval, subject whomever Gonillo wishes to whimsical

prosecution. Singleton v. City of New York, 632 F.2d 185.

This portion of Gerstein holding proceeds from the fact that

the 4th Amendment’s requirement of probable cause to

seizure has been incorporated into the 14th Amendment due

process clause and is thus applicable to the States. Gerstein

v. Pugh, 420 U.S. 103; Wolf v. Colorado, 338 U.S. 25.

Plaintiff has been deprived of a right “secured by the

Constitution and Laws of the U. S.”, 5th Amendment:

Gonillo tried to take Plaintiff's private property without due

process of law on 4/15/02, by having an ex parte hearing,

which Plaintiff knew nothing about. Gibson v. City of

Seattle Police, 472 F. 72 1220. Civil Rights 192, Sec. 1983

was enacted to provide redress for deprivation of rights

caused by abuse of authority, 42 U.S.C.A. Sec. 1983. Polk

County v. Dodson 454 U.S. 312. Deprived of Liberty:

Gonillo, Christie, E. Lipko, class-based ANIMUS, 3 women

26

against a man, ((App. 7-1 1) by prosecuting Plaintiff at trial

when they knew that the Probate Judge Ordered them to

distribute the Residue of the Estate on 8/ 14/95. Instead of

distribution of the Estate as ordered by the Probate Judge,

they prosecuted this Plaintiff without probable cause.

960 F. Supp. 766.

43. Plaintiff has been deprived of a right “secured by the

Constitution and Laws of the U. S”, 8th Amendment, Gonillo

and Christie knowingly and intentionally, and with reckless

disregard for the truth, made false Statements which were

necessary to the finding of probable cause for prosecution;

Gonillo asked Christie: but is it your claim that because of

Mr. Lipko’s litigation you were forced to keep this estate

open and forced to file further tax returns?” “Yes”. App.7-11.

Excessive fines: $206.485.00. Damages are recoverable

where constitutional rights have been violated... Herrera v.

Valentine 653 F. 2d 1220. The 14% Amendment imposes a

duty on State Officers to charge only upon ascertaining

probable cause. It follows that Gonillo can be liable for

subverting the performance of duty by maliciously tendering

false information to a Judge, which leads the Judge to believe

probable cause exists where there is none. Since this violates

federally guaranteed rights, it is grounds for a 1983 action.

44. Plaintiff avers that instead of distribution of the

Estate, Defendants refused to distribute his portion,

$24,014.34, of the Estate on 8/14/95. The Testimony of the

Plaintiffs on 4/8/96: Gonillo: “I really don’t want to close

that, have Mrs. Christie do the affidavit of closing until such

time as Mr. Lipko decides whether he is going to file an

appeal to your -,” Tr., Rush, 4/8/96, App. 4-6.

45. State Court Defendant has established that the State

prosecution has been instituted in bad faith and for purposes

of harassment or “official lawlessness”. Irreparable injury,

e.g. Title 28, U.S.C. Sec. 1343, need not be shown provided

there is present a basis for Federal jurisdiction and 42 U.S.C.

27

1983. Consequently, federal equitable intervention in a civil

proceeding is proper where there is a showing that the State

Courts proceedings are motivated by bad faith or harassment:

or where the applicable State Law is flagrantly and patently

violative of express constitutional prohibitions. Mitchum v,

Foster 407 U.S. 226. Plaintiff avers that irreparable damage

will occur to his family in the absence of a plain, adequate

and complete remedy at law. Further, Plaintiff avers that the

Appellate Court’s dismissal of Plaintiff's appeal on 2/21/02

was motivated by bad faith and harassment; and the State

Law is flagrantly and patently in violation of express

constitutional prohibition, Sec. 1983.

46. The judgment liens, which were placed on property,

are improper, and are intended to foreclose on property. The

first judgment liens on property will fail because the

judgment was based on fraud, and the Court had no

jurisdiction over the Defendant. The second Judgment Liens

placed on property, on 8/28/01, are against the constitutional

prohibitions and are based on the first judgment liens placed

on property. They must fail because the first will fail.

47. Invalidity of 2°* Judgment Lien on Second Property:

A judgment cannot be enforced by a procedure in revival if it

violates constitutional prohjbitions, because res judicata does

not protect an unconstitutional confessed judgment.

Consequently, when a court finds that the “old” confessed

judgment which that judgment underlies is unconstitutional

as well, and must fall with it. In re Souders (BC Ed Pa) 75

Br 427 (disapproved on other grounds by In re FRG, Inc.

(CAS Pa) 919 F2d 850,24 CBC 2d 40).

48. Petitioner has a good defense as follows: Defendants

were ordered to distribute the Estate. See App. 50-51, where

Defendants stated delay in closing the Estate; and Petitioner

was not under the jurisdiction of State Courts when Judgment

was rendered, having appealed to the Supreme Court of the

U.S. App. 29. Defendant was prosecuted without probable

28

EEE

$e

cause by the State of Connecticut. Plaintiff avers that the

Order of the Court, dated 3/20/02 for a hearing that relates to

“Monetary Sanctions against Plaintiff is motivated in bad faith

and harassment; and that State Law is flagrantly and patently

in violation of express constitutional prohibitions. Sec. 1983.

App. 30. Plaintiff avers that on 3/18/02, the Appellate Court

clerk was handed an original copy of the Jurisdiction

Notice,(App. 24) and that she stated that she was not taking

the notice. The clerk conspired with Gonillo or the case

manager, to not take the Notice. Sec. 1985, conspiracies to

interfere with civil rights. As to the order of monetary

sanctions, for the deprivation of a federally secured right

under color of a “custom or usage of (a) State” to be”

actionable under Sec. 1983, the custom or usage in question

must have the force of law by virtue of persistent practices of

state officials. Thus, a custom or usage may acquire the force

of law in this context even though it has not received formal

approval through official channels. Permitting a custom or

usage to acquire the force of law in this context recognizes

that the settled practices of State Court Officials by imposing

sanctions, transform private predilections into compulsory

tules of behavior no less than legislative pronouncements.

These known constitutional violations by the State Courts are

precisely the type of informal policy or custom that is action-

able under Sec.1983. Adickes v. Kress & Co. 398 U.S. 144.

The state agencies, Grievance Committees, Div. of Criminal

Justice (App. 60), and Federal Grievance Committees (App.

37-38) conspired to deprive Petitioner of Civil Rights.

Gonillo stated: “I took the file with me when I left Hurwitz &

Sagarin because the case got convoluted...” The case never

was convoluted. She kept silent that the Probate Judge

Ordered her to distribute the Estate. App. 37-38.

49. Testimony at Trial Court, 5/1/97, Gonillo, Estate

Attorney, Questioning Mrs. Christie: Q. Has that caused

you to pay for accountant fees due to the Estate still being

opened? A. Yes. p. 56. Q. But is it your claim that because

of Mr. Lipko’s litigation you were forced to keep this estate

open and forced to file further tax returns? A. Yes. p. 56.

THE COURT: “And the purpose of this is to show the

additional expenditures that the estate has incurred because it

has remained open all this time”. P. 57. Gonillo: “The estate

has had to expend sums of money in defending litigation

brought by Mr. Lipko”. P. 58. Q. When’s the next time you

came down? A. 8/14/95, the Probate Court hearing

accounting was done that day. p. 64. App.9-10.

50. Gonillo and Christie, knowingly prosecuted Plaintiff

with information they knew to be false. Wheeler v. Cosden

Oil & Chemical 734 F2d 254. The 14th Amendment requires

the states to make a determination of probable cause to

prosecute. Reeves v. City of Jackson, 608 F.2d 644. A

defendant may challenge a 4th Amendment probable cause

determination on the ground that it was based on information

which the State knew or should have known to be false and

that such information was necessary to the finding of prob-

able cause to prosecute. Franks v.Delaware 438 U.S. 154.

51. The purpose of the State ex parte order on 4/15/02 is

to cover up the Fraud on the Court. The specific reasons

why the Petition should be granted is to prevent substantial

loss or impairment of freedoms of expression (1st ), probable

cause (4th), deprived of liberty and property (5th), excessive

fines (8th), and enforcement of judgment (14th Amendment).

CONCLUSION:

This Court should vacate the State Court Judgments; vacate

the State Appellate Order for Sanctigns; reverse and remand

to the District Court.