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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT CONFIDENTIAL ______________________________________ COMPLAINT OF JUDICIAL MISCONDUCT _______________________________________ SUBJECT JUDGES THE HONORABLE MARVIN KATZ THE HONORABLE MICHAEL BAYLSON OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA July 7, 2008 ALI WARIS, Complainant pro se 2204 Westfield Court Newtown Square, PA 19073 Tel: (713) 408-3936; ichm @aol.com 1 Complainant Ali Waris pro se (Waris, also referred to as Complainant and Plaintiff) hereby brings this Complaint against the Honorable Marvin Katz (Judge Katz) and the Honorable Michael Baylson (Judge Baylson), of the United States District Court, under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364 Article-1, 3(h)(1)(D) for “treating litigants or attorneys in a demonstrably egregious and hostile manner,” and conspiring and colluding with the Complainant‟s opposing party. The two judges have generally disgraced their respective courts and, together, have maligned the good name and reputation of this Courthouse by conspiring among themselves, with the City law firms, and other businesses, who are heavy contributors to Senator Arlen Specter‟s campaign funds (Donors), to violate this Complainant‟s civil rights and to constructively deny him meaningful access to courts. The said Donor law firms have controlled and manipulated the courts of these jurists to criminally intimidate, torture, and harass the Complainant who is prosecuting a meritorious claim against their clients. Waris, as a pro se Plaintiff, pursued one case between 2006 and 2007 in the Court of Judge Katz, and is pursuing a different litigation currently pending in Judge Baylson‟s Court. In both the cases, Waris had the same unbelievably appalling and dreadful experience that no pro se should ever have. The criminal conduct of the Donors, has been in full knowledge of the two Judges who have taken an active role in successfully facilitating and covering up such conduct, apparently, with the confidence that they are immune to accountability, based on their close proximity with Senator Specter. In fact, supported by the facts presented herein, Complainant is inclined to believe that that the two Judges, together with the Donors, run an association-in-fact RICO enterprise as defined by 18 U.S.C. § 1961(4) [Enterprise]. At times, some of the 2 multibillion-dollar clients of these Donors are also established and active members of the Enterprise while many other clients come and go. The center of gravity of the Enterprise is, perhaps, Senator Specter‟s campaign funds which may have been serving the legitimate Front of the Enterprise. An unwavering loyalty to the Senator, and his Republican Party, appears to be the force that binds and propels these actors. Before discussing the bases of this Complaint and the players‟ modus operandi, it is imperative that a background account of the cast of characters is presented to provide some working knowledge on the mutual kinship of these operators. 1. Senator Arlen Specter Senator Specter has a very distinguished public service record as a United States Senator. He is the longest-serving Senator in Pennsylvania's history. First elected in 1980, he continues to represent the State having been re-elected four times. Senator Specter, who as the incumbent ranking member and former chairman of the Senate Judiciary Committee, for a number of years, has loads of influence on the judiciary of the United States. He has helped the careers of many federal judges of the district courts, circuit courts and even the justices of the U.S. Supreme Court. Thus a large number of the judges of the federal courts in the United States are either his protégés or are looking up to him for their career advancement. Many Judges of The Court of Appeals for the Third Circuit may be no exception. The Senator is reputed to reciprocate loyalty to his men, and has more than often, single-handedly mentored them to the progressive advancement of their careers. Both Judges Baylson and Katz are well-known examples of such relationship. Despite some issues surrounding Judge Baylson‟s ethics and conduct in the past, Senator Specter in the April 2002 Senate Confirmation Hearings for Judge Baylson said of him: “I have known him intimately for the course of the past 37 years. I can attest to his capability.” 3 2. Judge Marvin Katz Senior Judge Marvin Katz of the federal district court in Philadelphia has been on the bench for more than twenty five years . He is about 78 years old and deserves to be held in high esteems based on his age and his service to the federal court. However, Judge Katz‟s conduct belies such perceptions. Judge Katz is known to be one of the closest friends of Senator Specter. Both of them were born in Philadelphia in 1930. Both of them graduated from Yale law School. They had a partnership in a law firm for sometime. Soon as Senator Specter was elected to U.S. Senate, he helped elevate Judge Katz to the federal bench. They together allegedly lost about a million dollars when their former secretary embezzled from their common retirement fund. Unlike Judge Baylson, Judge Katz is generally uncontroversial and is considered very compassionate. For decades, he has kept a low profile. Judge Katz‟s turnaround time for the adjudication of motions may range from a few hours to a day which, unfortunately, is also reflected in the quality of his legal analyses of the pleadings. In 2006-2007, Complainant Waris had a RICO claim against Keystone Health Plan East (KHPE) a subsidiary of the mighty Independence Blue Cross (IBC) and its attorneys. A group of these RICO defendants were represented by Morgan Lewis and Bockius, one of the top donors of the Specter Campaign.1 Judge Katz was the presiding Judge. The proceedings of the case would reflect Judge Katz‟s egregious hostility against this pro se Plaintiff, and extreme affinity for Morgan Lewis clients and other defendants. Details of this account are provided in the Section on Judge Katz‟s Misconduct. Judge Katz is, supposedly, closely associated with Judge Michael Baylson through Senator Specter. 1 Morgan Lewis and Bockius donated to the Senator Specter Campaign: $31,700 in 1998; $22,350 in 2000; $27,100 in 2002; and $32,500 in 2004. 4 3. Judge Michael Baylson Judge Baylson has been one of the high profiled associates of Senator Specter. Born in Philadelphia in 1939, Judge Baylson worked for Senator Specter as Assistant D. A. when the latter was the District Attorney of Philadelphia in the 1960s. Judge Baylson was in private practice, on and off, as a partner in the firm Duane Morris and Hecksher. In 1988, the Senator helped him become the U. S. Attorney for the Eastern District of Pennsylvania, a position that he held until 1993. Later,in 2002, Judge Baylson, with the lobbying and recommendation of Senator Specter, was appointed to the federal bench of the district court of the Eastern District of Pennsylvania which he is still serving. Judges Katz and Baylson’s Close Proximity with Senator Specter. Judge Baylson‟s kinship with Judge Katz is known to be decades-old. It is based on their close proximity with Senator Arlen Specter who was responsible for their elevation to the federal bench and, perhaps, has provided them other life-long benefits. Both Judge Katz and Judge Baylson seem to have taken advantage of their relationship with Senator Specter. They are the law unto themselves. They openly violate the law of the land, and that of the Third Circuit, supposedly relying on the “immunity” provided to them by their proximity to one of the most powerful Senators in the nation. Given their egregious misconduct, as exemplified in this pleading, they seem to be either totally oblivious of the Rules of Judicial Conduct or consider themselves above these Rules. This Report presents such evidence across-the-board. Any neutral person who would review the proceedings of Waris v. HCR Manor Care, (the case under discussion), is likely to agree that what Judge Baylson is doing is unbecoming a court of law. 5 For example, the Baylson Court has thus far: 1. Covered up Defendant‟s perjury in the face of irrefutable evidence; 2. Exempted the Defense from following Rule56(f)2 so as to prevent Plaintiff‟s Motion for Summary Judgment against the Defendant; 3. Exempted the Defense from following Rule 33 which requires that Answer to Interrogatories be verified under OATH. 4. Unlawfully prevented the potential curtailment of billions of dollars in federal funding to the Defense for violating Title VI. 5. Unlawfully created a “privilege” for the Defense whereby it could prevent the disclosure of over 100 non-privileged (employee to employee e-mails) documents showing racial conspiracy. 6. Reversed itself when the Defense did not comply with the Court Orders and the Plaintiff filed a Motion for Sanctions against Contempt of Court. 7. Violated Rule 16 by not holding the initial conference for 10 months, coercing the Plaintiff to drop two counts alleging fraud. Rule 16 required the initial conference “must be held within 90 days after the appearance of a defendant.” 8. Allowed the Defense to file totally unrelated documents aimed at setting off an emotional volcano in Judge Baylson. In these documents, the Plaintiff, in an unrelated case, had caught Judge Marvin Katz of several ethical lapses. As noted earlier, Judge Marvin Katz is Judge Baylson‟s kinfolk through Senator Specter. 9. Facilitated the Defendant and Counsel to avoid taking the FIFTH or Answer the allegations of falsifying verified statements. 10. Has violated other Rules and laws and was involved in unethical practices such as covert hints and tips to the Defense during hearings. For greater detail on these infractions, see Baylson Court‟s Customized Rulings in this Report along with Docket references. Judge Katz treated this Complainant, in a 2006-2007 case, in exactly the same manner that Judge Baylson is currently treating him. The Katz Court: 1. Evidently had an ex-parte communication with the Defense, represented by Morgan Lewis law firm, a couple of hours after the complaint was filed on November 27, 2006. 2 Unless otherwise indicated, all Rules cited in this Pleading are Federal Rules of Civil Procedures. 6 2. Participated in the destruction of evidence when it granted Defense Motion that the Plaintiff be compelled to deliver the discovery production material to the Morgan Lewis offices in the unsupervised custody of the Defense. 3. Systematically blocked discovery of each and every critical issue relating to Defendants criminal activities against the Plaintiff. These crimes included (a) falsely attested and certified documents submitted to the court, (b) false verification,(c) destruction of evidence, (d) possible involvement in the shooting of Plaintiff‟s family car; (e) sending strangers to Plaintiff‟s residence and work place despite notice to Cease to Desist. 4. Had a predetermined outcome for the case since it reviewed about 130-pages of Plaintiff‟s Motion for Summary Judgment along with 10 other motions in less than four hours or so. Needless to say, every single Motion was denied. 5. Denied Plaintiff‟s motion for a 5-day extension to submit dozens of exhibits appended to his motion for summary judgment. In his motion for extension, Plaintiff had attached an affidavit, from a disinterested party, that Plaintiff was injured in a jogging accident and needed an extra five days to submit the exhibits. 6. Accepted a Defendant‟s Motion for Summary Judgment which had missed the deadline late by 60 days without a motion for extension. 7. Denied Plaintiff‟s motion to write an Opinion in the dismissal of Plaintiff‟s case. Judge Katz had predetermined the outcome of Plaintiff‟s case and had early on decided that he would not let the case go to the Jury because of a high probability of exemplary punitive damages award against the defendants‟ criminal conduct. In Plaintiff‟s case in the Baylson Court, the law firm of REED SMITH, also a heavy donor to Senator Specter‟s campaign funds, which Judge Baylson managed for decades, repeated some of the same criminal acts that the Morgan Lewis firm had perpetrated. REED SMITH had studied in-depth Plaintiff‟s case under Judge Katz. The firm‟s attorney adopted many of the same technique of falsifying verification that Morgan Lewis client had „invented.‟ Upon Plaintiff‟s Motion for sanctions against falsified verification, Judge Baylson denied the motion and, at the same time, told the defense not to answer the motion (obviously, so that they do not have to take the FIFTH). 7 Favorable Consideration Not The Only Motive of Donors Complainant is by no means suggesting that donation to the Senator Specter‟s campaign fund, by the area law firms, is only aimed at „buying‟ favorable rulings from Judges Katz and Baylson for the clients of the Donors. That is not likely the case. First, there may be other judges; federal, state or municipal who may have equally passionate loyalties to the Senator or the Republican Party of which the Senator is one of the best known faces. Second, in certain cases, there may be genuine and legitimate reasons for the contributions. After all, it is accepted to be an American‟s First Amendment right to contribute (or invest) quarter of a million dollars, like Blank Rome, year after year, for the enactment (or interpretation) of certain laws in their favor. What is likely is that funding of the Senator‟s campaign by law firms are more of a front for the herein alleged unlawful activities than it is for pursuing legitimate legislative goals. However, the information on this topic is very sketchy at the present time. This Complainant has not had the opportunity to research and discover enough data to established practice and patterns. In the only two cases, of adversarial nature, represented by REED SMITH in the Baylson Court, that the Complainant did come across, the final ruling was in REED SMITH‟s favor. Complainant did not go in to the merits of these cases. Whatever, the case may be, this Complaint on Judicial Misconduct is not solely based on these assumptions. The crux of the Complaint is the customized rulings coupled with the extra-judicial misconduct of the Baylson and Katz courts which, by rules, makes his merits-related allegation reviewable by the judicial council. 8 Standard of Review Complainant invokes the following Standard of Review as enunciated by the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364 (the Act) adopted in the Judicial Conference of the United States on March 11, 2008: Under Article III, Rule 11 (c)(1)(A) of the Act, if it is clear that the conduct or disability alleged, even if true, is not cognizable under these Rules, the complaint should be dismissed. If that issue is reasonably in dispute, however, dismissal under (c)(1)(A) is inappropriate. Essentially, the standard articulated in subsection (b) is that used to decide motions for summary judgment pursuant to Fed. R. Civ. P. 56. Genuine issues of material fact are not resolved at the summary judgment stage. A material fact is one that "might affect the outcome of the suit under the governing law," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Similarly, the chief judge may not resolve a genuine issue concerning a material fact or the existence of misconduct or a disability when conducting a limited inquiry pursuant to subsection (b). Even when a complaint is filed by someone other than the chief judge, the complainant lacks many rights that a litigant would have, and the chief judge, instead of being limited to the "four corners of the complaint," must, under Rule 11, proceed as though misconduct or disability has been alleged where the complainant reveals information of misconduct or disability but does not claim it as such. See Breyer Committee Report, 239 F.R.D. at 183- 84. Because the nature of allegations of this Complaint also render merits-related allegations reviewable, this Complainant requests that the Standard of such review should be of a higher magnitude than the framework used for a garden variety abuse of discretion which this Circuit has used in Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990) (no reasonable person would adopt the district court’s view). Here, the motives behind the misconduct are based on a vicious and „missionary‟ zeal rather than based on whim, caprice or human error. 9 Specific Allegations Against The Honorable Michael Baylson 10 Judge Baylson, for decades, served as Senator Specter‟s campaign fundraiser and Treasurer. This position involved considerable interaction with the top donors which, in the Senator‟s case, were, and are, mostly the law firms and some big business. Typical single contributions that came in the name of a law firm in 2008 ranged between $35,110 (Cozen & O‟Connor) to $229,900 (Blank Rome LLP), for example. Judge Baylson between 1993 and 2002 was a partner in Duane Morris at the Philadelphia office, located at One Liberty Place. During these years, he was actively soliciting donations, from large law firms as a fund raiser and Treasurer for the Campaign. Closest to Duane Morris is REED SMITH LLP, also located at One Liberty Place, a few floors up or down from Duane Morris. The Judge has had a good relationship with this firm, calling it to be “responsible and reputable” in the June 3, 2008, hearing. Baylson----Reedsmith Donation Relationship From a preliminary account, based on limited information, there appears to be a relationship between Judge Baylson‟s status on the bench and REED SMITH‟s donations to the Specter campaign. Between 2000 and 2002, Judge Baylson was holding himself out as a viable candidate for the federal bench and, at the same time, soliciting funds for the Senator‟s Campaign whose strong support for the Baylson candidacy made the appointment almost imminent. REED SMITH donation in the 1999-2000 campaign year are $15,350, placing the Donor in the top 25 list (In the previous cycle, 1996-1998, REED SMITH name is not found in the top donor list or any list). In fact, to set an example, in the 2000-2002 Cycle, Judge Baylson himself used his First Amendment right by donating about $9,650 to the Specter Campaign, directly and indirectly, out of which $2000 was given after the Judge‟s name, as a candidate for 11 the federal bench, was reported in the media which somewhat embarrassed the Senator when he was asked to comment on the breach of ethics: “If I had known about it," said Specter of his legal adviser‟s unethical donation, "I would have returned it.” Interestingly, the donor, in this case, was a candidate for federal judgeship. In 2002-2004, REED SMITH donation to the Specter campaign goes up to $27,750. In the current campaign cycle (2007-2008), REED SMITH donation is a whopping $42,000. Waris is inclined to suspect that his pending civil rights lawsuit against a REED SMITH client in the Baylson court is likely to be the reason for this surge.3 Indeed, the stakes for REED SMITH and its client are very high in the instant lawsuit. Certainly, worth $42,000 to the Specter Campaign. REED SMITH‟s Client, HCR Manor Care, was involved in a racial conspiracy, orchestrated by a series of planned fraudulent acts, to eliminate Waris‟ candidacy for a position that he had applied for. Waris has alleged race and age discrimination. Waris is of Asian-Indian origin and was 60 years old when he applied for the position in 2006. Potential for an exemplary Jury verdict on punitive damages is enormous in this case. Waris‟ status as a pro se can add grist to the mill not only for the jury but also in damaging REED SMITH‟s reputation who would lose to a pro se with no means and no legal resources. In fact, REED SMITH has made a fortune defending a pattern of HCR Manor Care‟s discriminatory practices in Pennsylvania (See other settled cases on the Courthouse dockets___all represented by REED SMITH). HCR Manor Care is one of the largest health care providers in the country with several billion dollars in annual revenues. 3 Even if the Reed Smith donations are made by individual attorneys of the firm (to circumvent the campaign financing regulations), it is no different from the donations made by the firm in its effect and benefits, for all practical purposes. 12 Baylson Court Custom-Designs Law for Reed Smith Waris‟ belief, correlating the donation with stakes of the REED SMITH case in the Baylson Court, is not in a vacuum. Neither a reasonable person with a basic general knowledge of the law, nor a person with highly advanced knowledge of law, can escape the conclusion that the rulings of the Baylson Court are bluntly CUSTOM-DESIGNED for the REED SMITH client. There are no, or little, subtleties. In these rulings, the Court has trampled the long standing stare decisis on a mass scale, including the case law of the Third Circuit and the U.S. Supreme Court. Additionally, under the „Might is Right‟ doctrine, Baylson Court has trashed any federal rule of civil procedures that, in any way, was demonstrably against the interest of the Defense. The honorable Court wants REED SMITH to sail smoothly and steer clear of a jury trial in defending its racist client. The devil is in the detail. A review of the rulings, as listed and described here, provides the single most irrefutable evidence of the Judicial Misconduct of the Baylosn Court. Nature Of The Case: (Waris v. HCR Manor Care, Case No. 07---3344) Because this Section provides merits-related evidence to support the allegations against judicial misconduct, it is imperative that a summarized account on the case per se is provided to facilitate understanding on Court‟s violation of the case law and Rules of Civil Procedures in Waris v. HCR Manor Care (07-3344). REED SMITH Client, Defendant HCR Manor Care, dba, Heartland, is one of largest healthcare providers in the nation. In March 2006, Plaintiff applied with Heartland for the position of one of its Administrators. Plaintiff was eminently qualified for the position as advertised. With two Master‟s in related fields, about 15 years of work experience in health care administration, 13 technology and consulting, lead authorship of two published books in health regulations, and health markets, along with considerable recent experience as adjunct professor of anatomy and physiology. He mostly taught to the RNs in-the-making. Thus all of his experience was ideally relevant and suited to the position. Plaintiff, however, was rejected. He was given a screening test with seven questions. Defendant‟s proffered reason, for rejecting Plaintiff‟s candidacy, was that out of these 7 questions in the screening test, Plaintiff did not answer two questions in enough detail. Ironically, the Questionnaire did not indicate length of the expected answer. Discovery revealed that the contested position was offered to at least two individuals. Both were (a) Caucasians, (b) at least 8 years younger to the Plaintiff, an age difference that, according to the Third Circuit, is significant in age discrimination cases, (C) not given the same screening test as the Plaintiff; (d) were substantially less qualified as compared to the Plaintiff, so much so, that the candidate who accepted the position, Kathleen Lamb, was a college dropout. There are several other complaints that have been filed against the Defendant which state gross age discrimination and race discrimination. There is substantial evidence that Heartland tries to race-match its employees with the race of the population it serves. Plaintiff who was 60 years old, and is of Asian-Indian origin, did not match the predominant White race of the area he was to serve. Given these hard facts on the merit of the case, Plaintiff is dumfounded over this Court‟s rulings that has altogether restricted Plaintiff‟s discovery for reasons that are not supported by precedent. Following are some examples where the Court‟s ruling are squarely in conflict with the Federal Rules of Civil Procedures and the case law including that of the 3rd Circuit. 14 Trashing Rule 16 To Frustrate the Plaintiff Baylson Court violated Rule16 to coerce the Plaintiff to drop two counts against the Defense. The said Rule requires that initial conference must be held “ within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant.” Plaintiff filed his Complaint in a County Court, Defendant removed it to the federal jurisdiction on August 14, 2007 (Docket#1). On August 22, 2007, Plaintiff filed an amended complaint (Docket#4). Defendant Heartland Answered the Amended Complaint‟s four Counts but moved to dismiss two Counts to which Plaintiff responded. The Court purposely delayed the adjudication of the motion for the dismissal of these 2 counts and did not hold the initial conference. To get the Case out of the jam, Plaintiff, on December 13, 2007, filed a Motion to Expedite Initial Conference [Docket #14]. On December 17, 2007, this Court denied the said Motion [Docket#15] on the grounds that a motion to dismiss was pending. This excuse did not make sense since only 2 of 7counts were at the risk of dismissal, the remaining 5 counts were well-grounded for the initial conference to take place and start the case proceedings. From there onwards, the Court neither ruled on the motion to dismiss two counts, nor did it call the initial conference. Obviously, the Court just was using delaying tactics in violation of Rule 16 to harass the Plaintiff and to appease the Defense. When the Court continued to delay a ruling on the motion to dismiss, and the initial case conference, for a total of 7 months, Plaintiff decided to withdraw the 2 contested counts by filing a motion on February 22, 2008, [Docket#16] so as to take away the Court‟s unfair excuse to further delay the case proceedings and harass the Plaintiff. 15 At long last, the Court issued an Order on April 28, 2008, that it will hold the initial conference and rule on other issues on June 3, 2008 [Docket#28], almost 10 months after the commencement of action. In an attempt to further harass the Plaintiff, the Court required the Plaintiff to come to Philadelphia from Houston, Texas (where Plaintiff had temporarily moved for job search), and attend the conference in person. The Court‟s own website says that it conducts the initial conference by phone for 15-minutes. Trashing Rule 56 (f) To Prevent Summary Judgment Against Defendant Even though the Court did not hold the initial conference for about 10 months, Plaintiff had initiated discovery by mid December 2007. Defense also served a series of discovery requests on the Plaintiff and subpoenaed documents from third parties. By mid February, 2008, Plaintiff had enough evidence to file his Motion for Partial Summary Judgment. Thus he did so on February 22 [Docket#17]. In the said Motion, Plaintiff invited the Defense to file a Rule 56(f) affidavit, if it needed additional discovery to reply to the Motion. The Defense answered the Motion with full force, but did not file the Rule 56(f) affidavit. After about three and a half months of the filing of the Motion for Partial Summary Judgment, the Court in the June 3rd, Hearing told the Plaintiff that the Third Circuit rules prevented it from ruling on motions for summary judgment prior to the end of discovery. The Court did not cite any specific ruling by the Third Circuit. Plaintiff, in a follow-up, could not find a single case with such a ruling. Conversely, Plaintiff found a series of cases where the Courts from all the jurisdictions, including the Supreme Court, required the non-moving party to file a Rule 56(f) affidavit for the postponement of a ruling on motions for summary judgment based on the need of additional discovery. 16 Thus the Court‟s postponement of a ruling on Plaintiff‟s Motion was purposefully orchestrated to help the Defense. This is more so, because it was sua sponte. Defendant Heartland had not procedurally asked the Court to do so. Plaintiff, therefore, filed a Motion for Reconsideration on June 5, 2008, two days after a ruling on Plaintiff‟s Summary Judgment Motion was postponed [Docket# 46]. In this Motion Plaintiff stated the fact that there was no ruling from the Third Circuit postponement of Summary Judgment prior to the end of discovery and that all the rulings required Rule 56(f) affidavits for delaying adjudication of such motions should the non- mover request for additional discovery. Later, on June 13, 2008, Plaintiff also filed a Supplementary Pleading [Docket#53] providing a list of 15 cases from the Third Circuit, 5 cases from the Tenth Circuit, 2 cases from the D.C. Circuit, and 3 cases from the United States Supreme Court, all emphasizing the requirement of Rule 56(f) affidavit in requests for additional discovery by the nonmoving parties in summary judgment cases. Defendant Heartland still did not provide the Rule 56(f) affidavit. Nor did the Court paid any heed to Plaintiff‟s Motion for Reconsideration. Thus based on two factors, Plaintiff withdrew his motion for Reconsideration [Docket#59]. First, because this Court‟s increasing hostility towards the Plaintiff gave a strong indication that, despite merit, Plaintiff‟s motion for partial summary judgment will be denied unless Plaintiff found a resolution to Court‟s egregious hostility. Second, on June 16, 2008, Plaintiff received Defendant Heartland‟s supplementary response to his interrogatories and its Privilege Log which indicated that to eliminate Plaintiff‟s candidacy for the job, a larger group of Defendant‟s employees was involved than what Plaintiff was told in earlier response. Thus the Plaintiff wanted to include this information in his summary judgment motion as well. 17 Regardless of Plaintiff‟s withdrawal of his request for Reconsideration, Court‟s violation of Rule 56(f) to prevent a summary judgment against the Defense was improper and a strong evidence of the Court‟s unfair treatment of the Plaintiff. Trashing Rule 33 (b) (1) To Cover Up Defendant’s False Verifications The Court, in order to cover up Defendant‟s falsified Response to Plaintiff‟s Interrogatories and Request for Admissions, gave the Defendant a blank check to choose and pick between Pennsylvania and Federal Rules of Civil Procedures so as to allow the Defendant to escape verification, under oath, of its false Answers. Following are the details: Federal Rules of Civ. Proc. do not require that a Response to Request for Admissions (RFAs) be verified. However, Rule 4014 (b) of Pa Rules of Civil Proc. requires verification of RFA Replies.4 Because one of Plaintiff‟s claims was the violation of a Pa Statute, Plaintiff requested the Defendant to verify its Answer to Plaintiff‟s RFAs. Defendant refused. Plaintiff then filed a Motion for Ruling On a Question of Law [Docket#31] asking the Court if a party has the right to invoke Pennsylvania Rules of Civil Procedures in the adjudication of a claim based on Pa statute. In the June 3, Hearing, the Court denied Plaintiff‟s Motion for the reason that it cannot take an advisory role and that Plaintiff should ask the above-referenced question in some other way. Fair enough. 4 Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission an answer verified by the party or an objection, signed by the party or by his attorney; but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the original process upon him or her. If objection is made, the reasons therefor shall be stated. [emphasis added]. 18 Next, Plaintiff filed a Motion to Enforce Pennsylvania Rules Of Civil Procedures for the Adjudication Of State Claims [Docket#47]. In the June 26, Hearing, the court denied the Motion ruling that only federal rules will be followed. Again, fair enough. But see, how the Court goes back on its words to accommodate Defendant‟s falsified Response to Plaintiff‟s Interrogatories. Defendant Heartland was giving the Plaintiff a hard time in verifying its response to Plaintiff‟s Interrogatories. Its Response was served in early February,2008, but without verification. Plaintiff sent numerous e-mails asking the Defense for a verification. The Defense refused to oblige. Thus on March 11, 2008, Plaintiff filed his Motion To Compel Full And Complete Answers And Production in which he asked, inter alia, that the Answers to Interrogatories be verified according to Rule 33 (b) (1) [Docket#20]. The Court in its Order of April 28, did Order the Defendant to Verify its Answer to Plaintiff‟s Interrogatories. Defendant Heartland verified three of its Responses under the penalties of 18 Pa C.S.A., Section 4904 relating to unsworn falsification to authorities. Heartland refused to sign these under oath as required by Rule 33 (b)(1)FRCP. Plaintiff thus filed a Motion To Enforce Rule 33 (b)(1) Re: The Verification Of Response Under Oath [Docket#61]. Plaintiff in this Motion argued that the federal Rule 33 (b) (1) expressly required the answers to be “UNDER OATH.” The Court denied the Motion in the June 26, Hearing, and held that “unsworn verification was the same as under oath.” Plaintiff respectfully disagrees with that characterization. In a related Motion, Plaintiff had also pointed out that the penalties for unsworn verification were substantially different from verification5 under oath. The 5 Statements "under penalty"--A person commits a misdemeanor of the third degree if he makes a written false statement which he does not believe to be true, on or 19 former, was a misdemeanor of the third degree, while the latter carried five years prison time and fine.6 Why was the Baylson Court avoiding to require Verification of Answers to Interrogatories under oath? It was, obviously, to cover up Heartland‟s false answers which it made in collusion with its Counsel. Trashing Rule 26 (b) (3) and Rule 26 (5) (A) To Create a ‘ New’ Privilege The Court Ordered the Defense to provide certain documents for discovery for which Plaintiff had filed a motion to compel. The Defense provided a Privilege Log listing the existence of: 1. Employee work-products NOT involving an attorney (100 documents); 2. Documents that are marked redacted without any explanation; 3. Documents that are redacted for relevance; 4. “Doctored” documents with intent to deceive and reduce liability; 5. Mixed requested information with junk information so as to deceive; 6. Blank sheets of papers with Bates numbers without any explanation. The Court created a new, unheard of, privilege for the Defense that employee to employee documents, not involving any attorney, are privileged because these were in preparation for trial. pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable. 18 Pa. C.S.A. Section 4904 (b). 6 18 U.S.C. 1623 (a) which provides: Whoever under oath or any other declaration, certificate, verification, or statement under penalty of perjury as permitted under Section 1746 of title 28, United States Code of any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both. [Emphasis added]. 20 Conversely, Rule 26 (b)(3) holds that documents, prepared in anticipation of litigation are discoverable even if they involve opposite party‟s attorneys. Plaintiff was just requesting documents that were e-mails exchanged among the employees with no attorneys involved. He demonstrated the need and the fact they were in the exclusive control of the Defendant. Similarly, the Court denied the discovery of dozens of documents that the Defendant had redacted without any explanation. Rule 26 (5) (A) requires that the responding party must clearly state the reason for redaction. The Defense has „doctored‟ a document that it produced. The Court ignored Plaintiff‟s request to have the Defense provide an answer on the alleged forgery. For a fuller explanation of these violations of law by the Court, see Plaintiff‟s Motion for Sanctions Against Contempt [Docket #57]. Baylson Court Reversed Itself When The Defense Refused To Comply With Court Order. Another evidence that REED SMITH, LLP, controls the Court, rather than Judge Baylson, is exemplified from the Court Order dated April 28, 2008, [Docket#28]. In the said Order, this Court, on Plaintiff‟s Motion, required Defendant Heartland to produce its nationwide statistics on its racial mix if prepared in the course of business. Defendant Heartland neither cared to file a Motion for Reconsideration nor did it produce the material as ordered by the Court. Plaintiff filed a Motion for Sanctions against Contempt [Docket#57], the Court in the June 3rd Hearing, instead of granting Plaintiff‟s Motion, reversed itself to accommodate Defendant‟s ignorance of its Orders. Another reason for the Court‟s reversal of its earlier Order was that Plaintiff in his Memorandum for the June 3rd Hearing had provided evidence that, in Pennsylvania, Defendant Heartland was race-matching its employees with the population it was serving [Docket#41]. The Court became apprehensive that with the nationwide statistics he was 21 demanding, Plaintiff might be able to demonstrate the practice and pattern of Defendant‟s race-matching on a national level which the Court did not want the Plaintiff to prove. Baylson Court Forced The Adjudication Of A Motion That Plaintiff Had Withdrawn, To Protect The Criminal Conduct Of The Defense. On June 23, 2008, Plaintiff filed his Motion for Sanctions Against Falsification and Obstruction Of Justice [Docket #62] in which Plaintiff provided irrefutable evidence in the Defendant‟s conflicting responses to Plaintiff‟s Interrogatories which were later verified by the Defense. Plaintiff also provided evidence that Defendant was still hiding the identity of an individual that it‟s verified response denied to have been involved. In the said Motion, Plaintiff cited all the statutes of federal criminal law that the Defense had violated. The Court in the June 26, 2008, Hearing, took the Motion under advisement and said it would rule on it at a later time. When during the hearing, Plaintiff realized that there was a heightened hostility by the Court against the Plaintiff, and extraordinary protection for the Defense, protecting even its criminal conduct, Plaintiff decided to withdraw his Motion [against falsification and obstruction of justice]. Thus after the Hearing, Plaintiff FAXED an advanced courtesy copy of the Motion to Withdraw to Judge Baylson‟s chambers and also sent a copy to the Defense Counsel. The fax to Judge Baylson went out at 4:20 PM on June 26, 2007, and the e-mail with the attached Motion went to the Defense Counsel also on June 26, at 4:34 PM. Despite the knowledge that Plaintiff had withdrawn the Motion, Judge Baylson denied the Motion the next day, on June 27 [Docket#68], so that no one else would rule on it. Plaintiff does not consider this ruling to be legally valid since he had already informed the 22 Court, and the Defense, that he had withdrawn the Motion.7 Bayslon Court Facilitated The Defense To Avoid Taking The ‘Fifth’ Or Answer The Allegation For Verifying False Statement. On June 23, 2008, Plaintiff filed his Motion for Sanctions Against Falsification and Obstruction Of Justice [Docket#62]. The defense answered the pending motions except this one. In the June 26, Hearing, there was no discussion on this Motion. The Court did two favors in protecting the Defense: (1) It told the Defense not to answer any motions filed by the Plaintiff; (2) Adjudicated the Motion even after the Plaintiff faxed his withdrawal. The Court just wanted to bar it under res judicata and collateral estoppel from future adjudication which was likely to be unfavorable to the Defense. However, as far the Plaintiff is concerned, such rushed-adjudication, given the improper situation, do not bar re-litigation under the above-referenced doctrines. Pennsylvania Supreme Court is clear about it. Moreover, the ruling was in a vacuum. Plaintiff had withdrawn the Motion and the Defendant had not answered it. Therefore, the Court was without jurisdiction to adjudicate it. Baylson Court Violated Rule 12 (b)(6) And Tile VI To Save Defense From The Potential Curtailment Of Federal Funding. One of the Counts in Plaintiff‟s amended complaint was Defendant‟s violation of Title VI which prohibits recipients of federal funds to unlawfully discriminate individuals 7 Plaintiff on purpose did not mail a copy to the Clerk‟s office since it was Friday afternoon and the earliest the Court Clerk would have gotten it would be Monday, June 30, when Plaintiff will go in person to file the said Motion. There is another reason for such personal delivery. On Tuesday, June 24, 2008, Plaintiff mailed two Motions to the Court on the right address. These motions did not appear on the docket. Then, on the morning of June 26, at about 9:00 AM, Plaintiff personally gave his Motion to Enforce Rule of Law to an individual at the Clerk‟s office, yet neither the mailed motions nor the personally delivered motion appeared on the docket till late Friday (June 27) afternoon. Plaintiff then called the Clerk‟s office, talked to Ann at 267-299-7004. She told the Plaintiff that she had no pending motion filings. Plaintiff then gave Ann the description of the man he had handed over the June 26, motion. Ann later got back and told the Plaintiff that she talked to her supervisor and that the July 26 motion was now on the docket, but there was still no trace of the mailed motions which were mailed from about 25 miles from the Courthouse on June 24th. Based on these uncertainties, Plaintiff decided to deliver the Motion to Withdraw by hand. 23 in employment. Defendant Heartland receives billions of dollars annually in Medicare and Medicaid revenues. The two counts of the amended complaint that Defendant Heartland had sought to dismiss, early on, did not include Tile VI Count. Defendant‟s Answers to the amended complaint included this Count. However, in the June 3, 2008, Hearing, this Court sua sponte attempted to dismiss Plaintiff‟s Title VI Count on the erroneous ground that the statute did not provide private remedy. Even the Defense disagreed with the Court. The Court also told the Plaintiff that it would not allow the requested discovery under this Count. The requested discovery, under Plaintiff‟s Motion to Compel [Docket#s 20and 30], was Heartland‟s contract with Medicaid. The Court was afraid that Plaintiff‟s evidence of unlawful discrimination against Heartland, potentially, might cutoff billions of dollars of annual Medicaid funding to the Defendant. Plaintiff on June 9, Plaintiff filed a Motion for Reconsideration [Docket#48] on the Court‟s erroneous ruling that Title VI did not provide private remedy. The Plaintiff cited the law in his favor and requested the Court to allow discovery of Defendant‟s contract with Medicaid. The Court denied discovery in its June 27 Order [Docket#68]. Thus what Defendant could not achieve, on its own, within the legal framework, i.e. use of Rule 12 (b) (6), the Court helped the Defendant achieve under the „might-is-right‟ doctrine. Court Has No Power To Dictate What Method Of Discovery A Party May Use. Federal Rules of Civil Procedures allow four methods of discovery in any combination the parties may deem necessary. However, the Baylson Court from the first day, is insisting that Plaintiff take depositions. In every Hearing, the Court has repeatedly insisted that. In the April 28, 2008, Order also, the Court states that the Plaintiff is 24 required to take depositions and should not try to discover information from other methods that is designed for deposition. However, the court did not elaborate what it meant by such a statement. Plaintiff has repeatedly told the Court that he would take deposition ONLY when he has some of the facts in front of him. But the Court will not let the Plaintiff discover the facts. The Court did order some discovery, but the Defendants did not comply and over 6 months after Plaintiff served discovery, he has very little information available to him. Still, the Court keeps insisting that Plaintiff should take depositions instead of other means he is entitled use. What is discoverable in deposition is also discoverable by other methods of discovery. But the plan between REED SMITH and the Baylson Court seems to be that, in the deposition, Defense will object on each and every question that is critical to Plaintiff‟s case and the Court will approve those objections. Given that this Court has blocked about 100 unprivileged documents such as employee‟ correspondence, on the selection of the Plaintiff , in which no attorney was involved, how can the Plaintiff trust that this Court will not cooperate with the Defense in hindering deposition. If such is not the plan, why is the Court interfering in how the Plaintiff should manage his discovery. Methods of discovery is always a party‟s choice with which the courts do not interfere. In the June 26, Hearing, the Court was told by the Defense that they have produced over 1500 documents. The court believed it; wanted to put it on record despite the fact that this Plaintiff has repeatedly documented that the Defense is providing lots of JUNK which the Plaintiff never asked. For example, the Defense has sent to the plaintiff three copies of the EEOC reports, it sent the Plaintiff duplicate set of resumes of all the candidates who applied for the job. Plaintiff never asked for this information. What the 25 Plaintiff asked was the resumes of the candidates who were selected and who interviewed. This information has been blocked. When this case goes to the appellate panel, Plaintiff will provide to it copies of all the junk that Plaintiff has received in the 1500 pages. Court Has No Power To Dictate Plaintiff Must Be Represented Besides forcing their choice of discovery method, Baylson Court and the Defense has been insisting that Plaintiff engage counsel. Though Plaintiff agrees that he should be represented, but it cannot be forced upon the Plaintiff. Under 28 U.S.C Section 1654, it is Plaintiff‟s statutory right to represent himself and the Baylson Court is without power to take away that right. In the latter part of this Complaint, Plaintiff has discussed why he cannot find representation. Predetermining The Outcome : A Court----Defense Strategy Baylson Court‟s flagrant violation of the case and statutory law and that of the Federal Rules of Civil Procedures as exemplified in the foregoing text is part of this Court‟s collusion with the Defense. From the rulings of the Court and the boldness with which the Defense violates law, the Big Picture is ready for a sneak preview. The plan is to: (a) DENY Plaintiff‟ his highly persuasive motion for partial summary judgment on liability; (b) BLOCK all discovery on damages, and (c) GRANT Defendant‟s motion for summary judgment, no matter how weak it would be, which is likely to be filed at the end of the discovery. , (d) DISMISS the case without writing an opinion. There is no way, Judge Baylson would let this case go to the Jury which is likely to hit the Defense with a huge verdict on punitive damages based on its race based conspiracy and its attorneys‟ conduct. This is exactly what Judge Marvin Katz did and this what is the standard formula in situations where Judges like Katz and Baylson are 26 determined to abuse the judicial process and violate their oath of office. Evidence : The Unfolding of The Fate of Plaintiff’s Claim The above-described strategy of dismissing this case is already at work as would be evident from the moving parts of the proceedings of this case thus far: (a) Plaintiff‟s highly persuasive Motion for Summary Judgment (Docket#17)8 has been already postponed on grounds that are squarely in conflict of at least 15 cases of the Third Circuit. The Court has trashed Rule 56(f) and exempted the Defense from filing the required Affidavit for additional discovery. (b) With outrageous blessings of the Baylson Court, the Defense has blocked the discovery of over 100 documents by trashing Rule 26 (b) (3) and Rule 26 (5) (A). [Docket #57]. (c) In the June 26, 2008, Hearing, the court has tipped the Defense to file Motion for Summary Judgment. (d) Wait for the Final Judgment when the Court will DISMISS the case without writing an opinion. 8 Only if the Investigators of this Complaint could review Plaintiff’s Motion for Partial Summary Judgement (Dkt. 17); Plaintiff’s Reply Brief (Dkt# 21) and Plaintiff’s Supplementary Pleadings (Docket#23), they will understand why the Court was delaying its adjudication. 27 Specific Allegations Against The Honorable Marvin Katz 28 Judge Marvin Katz’s Questionable Conduct Genesis of the Case : Important Pre-Action Background In September, 2004, Plaintiff, as a member of Keystone Health Plan East (KHPE), the for-profit subsidiary of Independence Blue Cross (IBC), filed a claim for a small amount to the insurer for reimbursement. When after making numerous follow-up calls, Plaintiff did not get paid until November, 2005, he filed a Complaint with the Delaware County Court of Common Pleas (DCCCP) in Media, PA. KHPE immediately sent a check for the amount. Since Plaintiff had spent a significant amount in the filing fee with the court, he asked that, at least, he be reimbursed for that as well since it was KHPE‟s conduct that necessitated the filing. Instead of paying heed to this reasonable settlement offer, IBC‟s Senior Legal Counsel, Michael Zipfel, Esq., called the Plaintiff and threatened him for a countersuit if the Plaintiff did not withdraw his court complaint. Thus the molehill became a mountain. Plaintiff refused to budge. He had bitter memories of IBC‟s dirty tactics when Plaintiff was in health care business and IBC used to tease him and other providers with lies and deceit and by not paying their dues, driving many of them out of business. Tampering of Audio Tapes and False Verification Plaintiff had 10 counts against KHPE in the State case. The defense moved to dismiss those Counts, but the court overruled. Later, Plaintiff, by way of discovery, requested the production of audio-tapes. KHPE edited the tapes before production and refused to provide verification as required by the Pa Rules of Civil Procedures. After repeated requests, KHPE provided verification that was technically deficient, with holes to escape penalty of perjury. Plaintiff challenged that and also filed a motion to investigate tampering of evidence. 29 Now faced with the possibility of criminal charges, KHPE changed its counsel and brought in a new Philadelphia-based lawyer, Attorney Gerald J. Dugan, of the Dugan Brinkman, Maginnis and Pace firm, located at 1880 JFK Boulevard, Philadelphia, PA. Dugan‟s office was in Philadelphia, but he maintained a law practice front [dummy office] In Media, PA, also___close to the courthouse. This office was just for judicial networking. In response to Plaintiff‟s discovery, Dugan admitted that he had not earned a single cent from that office in a number of years. With Dugan on board, things turned around 180 degrees for KHPE. The judges were changed. Plaintiff‟s motion for evidence tampering and false affidavit was placed before Judge Harry J. Bradley, a former insurance defense lawyer with a huge reputation to rule in favor of insurance companies. Judge Bradley immediately denied Plaintiff‟s motion for investigation without hearing or examination of the tampered evidence. When Plaintiff complained against judge-shopping by KHPE and the circumvention of the court procedures of random assignment of cases and motions before judges, Judge Bradley became very outraged and, in conjunction with Judge George Pagano, granted KHPE‟s motion to destroy Plaintiff‟s medical confidentiality and attorney-client privileges without a hearing or any due process. Mr. Dugan’s Crime Spree In the meantime, Dugan filed falsely attested and certified documents in court. Plaintiff, hereby, states under penalty of perjury that Dugan did so. He did many other fraudulent acts including several acts of mail-fraud. In the fall of 2006, Dugan sent a threatening letter to the Plaintiff that if he did not show up in a unilaterally setup deposition for August 30, 2006, Dugan would take action. Plaintiff did not appear for deposition. In the morning of September 1, 2006, Plaintiff‟s family car was shot at. Although a third party was convicted for the shooting, Dugan‟s 30 role in that criminal conspiracy was never ruled out. The Chester County D.A. did not want to complicate the matter in the shooter‟s conviction. Faced with such turmoil, Plaintiff filed a RICO claim against KHPE and its officers, Dugan and his firm, for damages and against the two County Court Judges for injunctive and declarative relief. The court administrator, who was instrumental in circumventing the random assignment of motions and facilitating judge shopping, was also sued for damages. Judge Katz’s Outlandish Role in Waris v. Frick, et. al. (Case No. 06-5189) The federal RICO claim was filed on November 27, 2006. It was assigned to Judge Marvin Katz. See Waris v. Frick, et. al. Case No. 2:06-cv-05189 [“RICO Docket”]. The docket in the above-referenced RICO case runs in 14 pages. For brevity sake, Plaintiff will only highlight Judge Katz‟s misconduct. Instead of providing relief to the Plaintiff who had come to his court for federal protection against the misconduct of state judges, Judge Katz himself was hostile to the plaintiff from the first day. As would be evident from the text below, he was in cahoots with the Defense all along. Judge Katz’s Suspected Ties With the Defense During the progress of the case, Plaintiff was absolutely shocked to discover that two hours after Plaintiff‟s RICO complaint was filed with the Clerk‟s office, it was faxed to the Defense. Attorney Eric Kraeutler of the Morgan Lewis and Bockius Firm had a copy of the Complaint with fax markings from Judge Katz‟s chambers showing the November 27, 2006, date. Given the fact that Attorney Kraeutler did not enter his appearance in the case until December 22, 2006 [RICO docket#10], the question arises how did Judge Katz know, a month in advance, that Kraeutler will be representing KHPE? Also how did 31 Kraeutler, or anyone with the defense, know that a complaint was filed against them in the federal court two hours after the complaint was filed and weeks before it was served on any of the defendants. Judge Katz’s Role in the Destruction of Evidence It sounds so unbelievable, but it is true. Judge Katz helped the defense in the destruction of evidence. First, Judge Katz granted the Defense‟s Motion to compel Plaintiff to produce an extremely broad and unreasonable discovery requests that included each and every document pertaining to litigation including copies of all legal proceedings filed in the court in that case. Even copies of documents that the Defense had sent the Plaintiff. [RICO Docket#39]. Second, Judge Katz Granted Defense‟s Motion that Plaintiff carry the documents to the Morgan Lewis Firm instead of the Defense attorneys coming to Plaintiff‟s location for inspection and copying. [RICO Docket#44], Third, Judge Katz denied [RICO Docket#45] Plaintiff‟s Motion to not Order his production to Morgan Lewis site in the unsupervised custody of the Defendants [RICO Docket#47]; Thus Plaintiff was coerced to drop off dozens of documents and audiotapes to the Morgan Lewis firm for several days. When the material was returned to the Plaintiff, at least two of the audiotapes were erased. Plaintiff informed the Morgan Lewis attorney, Eric Kraeutler, and requested him to give names of the individuals who had handled the material. Kraeutler refused. Plaintiff then filed a Motion that the material was tampered with and stated under oath that he did not cause the tampering. Plaintiff also volunteered to take the polygraph test to confirm that he did not cause the tampering of the material. Plaintiff asked the 32 court to compel the Morgan Lewis firm to provide the names of the individuals who handled the material [RICO Docket#57]. The court denied the motion [RICO Docket#66]. There are numerous other episodes in which the Katz Court violated the law, very much like the Baylson Court. Plaintiff, for brevity sake, will avoid listing them here because these are well-described in Plaintiff-Appellant‟s Brief and Reply Brief filed with the Third Circuit (Case 07-3927). As anyone could see, in the Reply Brief, the Defendant-Appellees Miserably Failed To Rebut Plaintiff-Appellant‟s Allegations. Rico Case On Appeal As stated above, the RICO case presided by Judge Katz, referenced herein, is on appeal with the United States Court of Appeal for the Third Circuit (See Waris v. Frick, et.al. Case No. 07-3927) for the merits-related remedy of the case. It is presented here for a Remedy on the associated judicial misconduct aspects of the Claim. Because the said misconduct constructively denied Waris a meaningful access to court, these incidents and anecdotes are also included in the Appellant‟s Brief and Appellant‟s Reply Brief submitted to the appellant panel. 33 Discussion and Conclusion 34 REED SMITH: Past Misadventures REED SMITH is no stranger to its stealth back-door interactions with the jurists. That seems to be the backbone of its success and marketing. The firm got the public to picket its Pittsburgh office in its recent representation of the Democrats who challenged Ralph Nader‟s candidacy. REED SMITH allegedly managed to get the case before a hand- picked Democrat judge. Got a favorable ruling and taxable cost of $60,000. When Nader challenged the ruling in the Pa Supreme Court, Reed Smith won in a divided court. The only problem with the winning was that REED SMITH allegedly forgot to tell the opposing party that it had contributed $10,000 to Justice Newman election campaign, was representing Chief Justice Cappy in a tax evasion case and the law firm had a standing job offer to its former partner, Justice Castille. Hopefully, after the instant case develops, REED SMITH leadership would consider hiring skilled lawyers rather than just relying on strategic donations that are poisoning the roots of democracy. Judge Baylson: Past Misadventures It seems, Judge Baylson came to the federal bench with considerable baggage. He is yet to shed his prior loyalties and strong views which keep interfering in his solemn duties as a jurist. Strong support for the government, the Republican party and its racist agenda, loyalties to the cronies of Senator Specter, together with the donors of the Specter election campaigns, and other strong personal likes and dislikes. These strong views of Judge Baylson keep reflecting off the bench which are an unwelcome shock to the litigants. The Judge received harsh comments from the public, at large, when he ousted a juror in the Corey Kemp corruption trial which allegedly was based on his loyalty to the FBI. In a different case against the government, the attorney for the plaintiff complained that Judge Baylson regularly gave the defense veiled hints on 35 the management of the case. (Complainant can believe the veiled hints allegation because this is exactly what the Court has been doing in his case. In the latest June 26th Hearing, the Court was hinting the Defense to file a motion for summary judgment soon as possible to which the Plaintiff sarcastically replied, “yes, they are going to win it too.”) Such judicial biases limit a litigant‟s meaningful access to the court. For example, Waris [this Plaintiff] wants to join the federal government in his case, under the Federal Tort Claims Act, for ignoring Defendant‟s civil rights abuses, and its race-oriented business planning, which the government is mandated to monitor in its annual surveys of the federally funded facilities. But Waris cannot join the government because of the Baylson Court‟s well-known ethical lapses when the government is given to hold the accountability bag. Should anyone suggest that since his rise to the federal bench, Judge Baylson has isolated himself from the Specter-campaigns and the donor list, Waris would be the last person to believe. A person who has been associated with Senator Specter for all his adult life, was the driving force for his campaign funding for decades and given that the Senator has also been the exclusive vehicle for Judge Baylson‟s personal success, could not possibly disassociate with it, especially, when he can easily shrug off such expectation. In fact, it is quite natural for Judge Baylson to aspire for a few flights up (literally and figuratively) to the Third Circuit. Particularly so, when the living example of Judge Rendell is just next door. Judge Rendell, also from Duane Morris, rose to the appeals court through the district court with the mentoring of Senator Specter. Troubling Issues Linked to Judge Baylson It was Judge Baylson‟s immense loyalty to the Republican Party which was surrounding his fiasco in the lie-detector test that the Judge allegedly flunked as the U. S. Attorney. The test was ordered by then U. S. Attorney General Dick Thornburg in the 36 leakage of the grand jury testimony in Congressman William Gray, III, matter. Thornburg himself passed the test. What is disturbing about the lie-detector fiasco is that the incident was allegedly not disclosed to Senate Judiciary Committee, or the Senate, in the confirmation hearings of Judge Baylson. Senator Specter, who was well-aware of the incident, allegedly also kept quiet. Waris has no personal knowledge of the lie-detector test (a NY Times Report) nor of the hearings; he has yet to check the government and FBI record on the issues. If true, one must wonder what did the FBI Report, on the background check of the Judge, read. Did the FBI check the background at arm‟s length or it was too cozy with Judge Baylson to manipulate the information? Waris’ main problem is the validity of Judge Baylson’s rulings if the Judge’s confirmation hearings were indeed circumvented. Though the incident took place about 12 years before the Judge was sworn in, yet it was significant because it happened when the Judge was a U. S. Attorney, a position of extreme responsibility, trust and integrity. The late Chief Justice William Rehnquist, in his confirmation hearing, was grilled on his participation in the authorship of the Separate-but-Equal doctrine with Justice Robert H. Jackson in Brown v, Board of Education, when the CJ clerked for Jackson in the early 1940s. His membership in a Whites-only club, decades earlier, was also an issue. That „s how far back the judicial nominee is taken by the interrogators. Thus the public accepts the high-ranking government officials on the trust that these officials have passed the muster and the tough scrutiny required for the position. If for any reason such scrutiny has been compromised, the appointment is invalid. More so, if the official has shown an unabated pattern of the same undesirable conduct that is inconsistent with high positions of trust and responsibility. 37 If this Plaintiff was in control, he would have gotten each and every ruling by Judge Baylson vacated for their invalidity and would have required the Judge to repeat the confirmation process with due disclosures. Plaintiff Waris may not be the person in control of affairs of the federal judiciary, nevertheless, he is the Master of his own claim, like any other plaintiff. And he takes an issue with the state of affairs. He may take up this problem with courts of appropriate jurisdiction and request all rulings and Orders in the Waris matter be vacated since not doing so, would be an undisputed violation of Waris‟ Constitutional rights. Our system of justice is too deep-rooted to accommodate judicial malpractice. The Complainant, Judge Baylson and the Einstein Medical Center Scandal Whether or not Senator Specter hushed-up Judge Baylson‟s background information by preventing its disclosure to the confirmation bodies of the Senate, this Complainant is confident that the Senator did hush-up Judge Rendell‟s background information which Judge Baylson, as the U.S. Attorney, also tried hard to suppress. In the mid 1990s, Judge Rendell, then City‟s First Lady, was a director of Albert Einstein Medical Center, located in North Philadelphia. During her directorship, the Medical Center was involved in Medicare fraud and kickback schemes in criminal conspiracy with the Visiting Nurse‟s Association (VNA) of Philadelphia. According to the scheme, the VNA will provide nurses for hospital‟s discharge planning, at its cost, and in return, will receive home health care patient referrals from the hospital. VNA will then turn back and bill Medicare for cost reimbursement for the salary of the nurses, showing it as its own expense. Discharge planning is expressly a hospital function the cost of which is factored in the DRG‟s payments by Medicare and other payors. So here, the Medical Center was saving the money for which it was being reimbursed and passing the cost to VNA at the cost of patients choice for home health. 38 This Complainant, Waris, owned and operated a home health care business in the name of American Health Systems, (AHS) in which two of his attorney friends, late Alan Steinberg, Esq. and Neil Carver, Esq., had invested. AHS had a branch office at Melrose Park. With the VNA‟s unlawful alliance with the Medical Center, AHS‟ home care referrals started drying out. Waris first attempted to discuss the situation with the Medical Center‟s Administration through a close friend, Dr. Barry Getzoff, who had privileges at the hospital and close ties with the Administration, but the Administration was way too arrogant to resolve the issue. So AHS sued the Medical Center and the VNA under antitrust and RICO violations. The Medical Center filed a Rule12 (b) (6), Motion which Judge Thomas O‟Neill of the U.S. District Court denied with a strongly worded Opinion upholding the validity of the applied law vis-à-vis the bribery and fraudulent billing allegations [See American Health Systems, Inc. v. VNA of Greater Philadelphia, No. 93, Civ. 542, 1994 WL 134313 E.D. June 29, 1994). Around the time Einstein Medical Center was involved in Medicare fraud, other medical centers, such as Thomas Jefferson Medical University (TJMU) and Hospital University of Pennsylvania (HUP), were doing similar things. The U.S. Attorney‟s office investigated TJMU and HUP and settled with them for millions of dollars. Perhaps, it was $30 million for HUP and $8 million for TJMU, but despite the common knowledge of Albert Einstein‟s conduct, and the strongly worded Opinion of a federal judge, Albert Einstein was not touched. This was around the time Judge Baylson was leaving the U.S. Attorney‟s office near mid 1993. And after a brief transition Michael Stiles had replaced him. Despite complaints of impropriety, neither of the U. S. Attorneys investigated the medical center. 39 Stiles was aspiring for the federal bench so he had to be politically correct and not offend Judge Rendell, a close member Senator Specter‟s clan. In fact, Stiles himself allegedly was a family friend of the Rendells. Judge Baylson has been downright political throughout his career so he could not have opened the can of worm against one of the closest allies of Senator Specter. His doing the right thing was out of question. Senator Specter also knew about the above-stated activity, but he also chose to suppress the information in the confirmation hearings of Judge Rendell. The Senator is a Master of hush-up. As stated earlier, he had allegedly hushed up Judge Baylson‟s lie- detector fiasco from the knowledge of the Senate and its judiciary committee. Morgan Lewis’ Dirty Litigation-Tricks What does Albert Einstein story has to do with the present complaint of judicial misconduct? Unfortunately, there is a direct link. Throughout the RICO case before Judge Katz, the Morgan Lewis attorneys were itching to somehow communicate to Judge Katz about Waris‟ litigation history against Albert Einstein. These attorneys did end up bringing the matter before the Judge impressing upon him Waris‟ antagonism against the leadership of Einstein Medical Center, particularly, against Judge Rendell. Morgan Lewis Attorneys thus achieved their goal and Judge Katz‟s hostility against Waris heightened several folds as would be evident from the activity on the RICO docket. Morgan Lewis Attorney Eric Kraeutler was no stranger to such methodologies in 2007. Back in the mid 1990s, along with the Einstein Medical Center‟s case, was a companion case against another hospital, and home health agency, in which Mr. Kraeutler was on the defense team with some other major law firms of the City. The case was in Judge James McGirr Kelly‟s court. His Magistrate was the Honorable Edmond Naythons. In this case, Waris was unreasonably pressured to withdraw the claim, but he refused. 40 The Defense then had an ex-parte meeting with Magistrate Naythons on an unknown issue. Who knows what they told the Magistrate that he illegally ordered the U.S. Marshals to intimidate and harass the Plaintiff and tap his business phone without any justification. One of the Marshals followed the orders, but others refused. Though Waris was well represented, he took upon himself to report the matter to then Chief Judge of the District Court who immediately removed Judge Naythons from the case within minutes of receiving Waris‟ Complaint and Waris was advised to file a judicial misconduct complaint. When Plaintiff filed a complaint of Judicial Misconduct against Judge Naythons, the Magistrate quietly resigned. However, the incident left such a chilling effect on the Attorneys representing Waris‟ business that they withdrew their appearances because Judge Kelly was still presiding. This is all part of the record. Waris now regrets why he did not take legal action against Magistrate Naythons who had violated several state and federal laws. Had he then done so, today, Judges Katz and Baylson, perhaps, would not have repeated similar harassment. In retrospect, Waris considers Naythons incident a blessing in disguise. It has hardened him to face such kind of official misconduct which seems to be a commonplace in this district. One single party faces three judges who have breached their oath of office and have stooped so low that they are in cahoots with unscrupulous lawyers such as Eric Kraeutler, Esq., of Morgan Lewis and Sara A. Begley, Esq., of REED SMITH. Reed Smith Copy-Cats Morgan Lewis’ Dirty Tricks Eversince Waris launched his lawsuit against HCR Manor Care, REED SMITH attorneys had been downloading docket items from other cases in which Waris, or his business, 41 was involved. They showed off the stack of these documents, unrelated to their case, in Waris‟ deposition. Waris refused to discuss that material in his deposition. The REED SMITH attorneys had a strategy. They would use this material, of the Judge Katz-related case, to incite Judge Baylson and exploit his kinship with Judge Katz. They did so on June 25, 2008, a day before the June 26 Hearing. Docket#65 would show that they submitted, as an exhibit, Plaintiff‟s 16-page Complaint in the RICO case along with other unrelated material and built up a pretext for its submission. Judge Baylson, who should have sua sponte stricken the above-referenced material from the proceedings of his case as unrelated, conversely, got so carried away that he spent most of his day reading and reacting to REED SMITH‟s motion. Perhaps, he discussed the details with Judge Katz as well. As a result, he did not read at least half a dozen motions filed by Waris. The transcript of the June 26, hearing would show that Judge Baylson walked in to the Court without reading a word from Waris‟ important discovery motions but having full knowledge of the rubbish, unrelated to the case, sent by the Defense. Judge Baylson‟s heightened hostility against the Complainant is reflected in his Order of June 28, 2008 (Docket#68) wherein he denied each and every motion filed by Waris. Though the said Order reads like a normal order, one has to know the underlying facts to realize its prejudicial bases. Failures In The Judicial Watch Judge Katz‟ Final Order was issued in September 2007. Waris had not planned to file a complaint against him under the Judicial Conduct and Disability Act because he lacked faith in that process after his experience with Magistrate Naythons. In that case, the Appeals Court tried its best to suppress the incident and let the Magistrate resign without any reprimand. To the Appellate Court, short-term collegial loyalty is more 42 important than ensuring the long-term integrity of the judicial system under its watch. Another failure is at the media end. Right from the inception of American democracy, the law has given an unmatched leeway to the media, and the entire system along with the public, has rallied behind the freedom of the press so as to nurture a private watch-dog on every individual and entity which can report activities against public interest. However, the over-commercialization of the print and electronic media is destroying the intended effect. Philadelphia Inquirer is supposed to be a highly respectable newspaper of national repute and is the winner of several Pulitzer‟s in journalism. It, however, has done an extremely poor job in reporting the subject under discussion. The Inquirer leadership, a great friend of Senator Specter and his cronies, followed Ronald Reagan‟s instructions Thou shalt not speak ill of any fellow Republican. Thus what Dave Lindorff, a columnist for CounterPunch, wrote on Judge Baylson: It would not have been difficult to find local attorneys who could have commented, at least on background, about the judge’s background, politics, and latest action. The Inquirer chose instead to focus on the Judge’s calm demeanor, and sought out a friend to praise his judicial temperament. The paper might have done better to quote a local judge who told me, referring to the decision to dismiss the hold-out juror on a spurious charge of bias, “Judge Baylson must just enjoy this case so much he wants to have to try it over again.” Similarly, Complainant still remembers Inquirer‟s flattery of Judge Rendell upon her appointment to the Appeals Court that she was one-step from the U.S. Supreme Court (not mentioning that there were more than 300 other circuit court judges with the same potential) . What the Honorable Judges, and their supervising judges, have to realize that the way Judges Katz and Baylson have conducted the business of the Court, as complained herein, is not acceptable even in the developing countries. Plaintiff knows 43 that, first hand, because he was born and brought up in India and came to the United States at age 30. Moreover, this Courthouse9 has a very special location which no other court in the world has. It is just 15-20 yards across the street from Liberty Bell and Independence Hall. And two blocks from the Courthouse, on 6th and 7th Walnut, is the Tomb of the Unknown Soldier where someone, with the sensitivities of John Adams, can still feel the intense melancholy. In fact, the Tomb is the best inspirational resource to fight the tyranny of the Naythons, Baylsons and the Katzs of the world. These soldiers gave their lives in war to protect the rights of the plaintiffs. In return, the aggrieved plaintiffs must pledged that they would fight, without armor and artillery, to protect the soldiers‟ memory. And it is the energy derived from this shrine that would empower such plaintiffs to fill court dockets. So the attorneys of REED SMITH are foolish to indulge in the short-term euphoria. Their stealth alliance with the Courthouse is not destined to be durable. Can Random Assignment of Cases Be Circumvented? Is the case assignment process, in the U.S. District Court for the Eastern District of Pennsylvania, really random by computer? If yes, can it be manipulated? Can the manipulation be caught? If yes, was this case really assigned to Judge Baylson at random? The foregoing trail of events demonstrate that perhaps it was not random. Based on the „Troubling Questions‟ below, it is difficult to swallow that all those involved in the allegations, and suspected conduct, are merely victims of a series of 9 The bold inscription (Liberty, Justice, etc.) on top of the Courthouse, coupled with the stubbornly flying American flag, belies what is going on inside. Nevertheless, it is not a bad goal to advertise. 44 „coincident‟. Except for the creation of life on this Planet, over 3 billion years ago, as claimed by the Evolutionists, this Complainant is not aware of so many, well orchestrated and coordinated, co-incidents taking place to support one miraculous outcome. That is, make the Morgan Lewis and REED SMITH clients win their liability law suits with no viable defense. Troubling Questions : First Series Knowing the influence of big law firms on the judges of this Courthouse, Plaintiff filed this claim in the Montgomery Court of Common Pleas. Because the Smith Reed Firm, apparently, does not finance the judicial elections of that County, it removed the case to this Court. Was the case removed to federal jurisdiction because the Defense wanted the proceedings to move faster since cases in federal courts are better managed and move rapidly. No, that was not the case. This case sat with the Court, without any activity, for 1O months. The Court even denied Plaintiff‟s request to enforce Rule16 which requires initial conference within 90 days. Why then the case was brought here? Is it a coincident that the case was assigned to Judge Baylson who, it turned out, was a great friend of the REED SMITH LLP (it is a few floors, up or down, from Duane Morris, Judge Baylson‟s law firm of many years). Is it a co-incident that REED SMITH had contributes $15, 350 plus $27,750 in Specter campaign with which Judge Baylson was closely associated as a treasurer? From whom, at REED SMITH. did Judge Baylson solicit funds and for how many years? Is it also a co-incident that REED SMITH has contributed almost $42,000 to the Specter campaign in 2007-2008 when it was defending a high-stakes claim on behalf of its client HCR Manor Care at the Baylson Court? 45 Is it a coincident that, given all the foregoing coincident, the Baylson Court is custom-designing law for REED SMITH and rejecting the enforcement of any Rule of Civil Procedure that is unsuitable for REED SMITH Client? Also, why was Plaintiff‟s RICO claim went straight to Judge Katz whose chamber faxed it to the Defense, a couple of hours after its filing on November 27, 2006, and weeks before the Complaint was served on the Defendants? How did the Judge know Morgan Lewis Attorney Eric Kraeutler was going to represent some of the RICO defendants when Morgan Lewis did not enter appearance until month after? If Morgan Lewis requested the fax, how did the firm know there was a case filed against their client in the federal court, two hours after its filing? Why did the Morgan Lewis firm filed a motion with utmost confidence to accomplish an unreasonable demand that was not the routine practice of document production? Why did the Court grant that motion in toto. Why did the Morgan Lewis firm refuse to disclose the names of individuals who had handled material produced by the Plaintiff? Why did the Katz Court deny Plaintiff‟s motion for an investigation of possible tampering of evidence by the Morgan Lewis firm given that Plaintiff had submitted an affidavit and willing to voluntarily take a polygraph test? Why did the Katz Court deny each and every discovery request to cover up RICO Defendants‟ crimes? Why did the Katz Court deny Plaintiff‟s request for a 5-day extension for the submission of dozens of exhibits appended to his motion for summary judgment given that Plaintiff had filed an affidavit from a non-interested third party on the injury of Plaintiff in a jogging accident? At the same time, Judge Katz allowed one of the Defendant 46 in the case to file its motion for summary judgment as late as 60 days from the deadline. The Defense was so confident of Judge Katz‟s favor that it did not care to even seek extension of the deadline for filing. Why did Judge Katz deny Plaintiff‟s request to write an Opinion on his Final ruling in the case? ALL THE ABOVE-STATED QUESTIONS LEAD TO ONE AND ONLY ONE ANSWER: Judge Katz had conspired with the Morgan Lewis firm and other Defendants on the assumption that the pro se Plaintiff was an idiot and that the Judge was immune from any accountability by the Judicial Council. Judge Baylson is „invoking‟ similar „immunity‟ against his customized rulings for the other Specter Campaign Donor, REED SMITH LLP, which already has a tarnished reputation in judicial manipulation in other cases. Troubling Questions : Second Series The second series of questions centers around the lie-detector fiasco. Did the FBI know about it during the background check of Judge Baylson? Did the FBI hush it up because of its close ties with Judge Baylson when he was the U.S. Attorney? When a juror was kicked out of the Baylson court for not trusting the FBI, was it because of Judge Baylson‟s close with the FBI in the Philadelphia region. Did Senator Specter influence the FBI to hush up the lie-detector stuff. These questions may appear to be unrelated, but they are not. Any one who reads on the Custom-Designed rulings of the Baylson Court described earlier in this Complaint, would agree that the Katz and Baylson Courts have gone way way out of line to assist Morgan Lewis and REED SMITH clients respectively. 47 Does that mean that anyone can break the law, cause damages and then hire Morgan Lewis or REED SMITH to escape liability? Baylson Court so aptly denied Plaintiff‟s Motion for Equal Treatment Under the Law (Docket#60) and Motion to Enforce Rule of Law (Docket#67). Chilling Effect on Small Law Firms As mentioned earlier, Waris is prosecuting his claim pro se. He tried real hard to find representation but, despite the obvious merit in the case, he could not find a lawyer because of REED SMITH‟s reputed modus operandi. No small or medium size law firm would risk a contingency fees arrangement in a case which is controlled by a large law firm with strong judicial connections. Had he not been disgusted with the unbearable stink, Waris would have pursued the possibility of representation with even a larger law firm, with larger donation amount to the Specter campaign, such as BLANK ROME (2002: $111,600; 2004: $258,550; 2006: $164,750; 2008: $229,900) so as to trump REED SMITH‟s „minuscule‟ donation (2008: $41,950) in the Baylson Court. Complainant’s Remedial Measures and Prayer The instant Complaint is for Judicial Misconduct. Plaintiff does not know how much in terms of merits-related remedy are permissible by the Judicial Conduct and Disability Act. However, Plaintiff is continuing to take a series of corrective measures to salvage his Claim by using the standard procedures available to him under the given situations He would continue to systematically pursue his protection from such egregious misconduct within the framework provided under the law and Rules of Civil Procedures. Nevertheless, as part of the Judicial Council‟s review, Complainant is requesting that: 48 1. The two Judges be disciplined after a review and adjudication of this Complaint. 2. Judge Baylson‟s customized rulings, as discussed in this narrative, be vacated. 3. Judge Baylson be Ordered to recuse himself from Plaintiff‟s Case; 4. Judge Katz be Ordered to recuse himself if Plaintiff‟s Appeal reverses the district court ruling and the case is remanded. 5. A thorough investigation be launched on the impact of the law firms‟ donations on the judicial proceedings in the U. S. District Court for the Eastern District of Pa. 6. A thorough investigation be launched on the vulnerability of the system of random assignment of cases and its circumvention by powerful litigants and their law firms. 7. A thorough investigation be launched on the vulnerability of the system that assigns appeals to the panel of circuit court including on the composition of the panels. Plaintiff has come to suspect certain activities of the Appeals Court Clerk, Marcia Waldren. WHEREFORE, Plaintiff respectfully requests the Judicial Council to do the needful to assure that this Plaintiff is fairly treated by the system and has been remedied for all that he has lost secondary to Judicial Misconduct by the two Judges: Respectfully submitted, Ali Waris Ali Waris, Plaintiff pro se 2204 Westfield Court July 7, 2008 Newtown Square, PA 19073 Tel: 713-408-3936 49 Affidavit Declaration And Signature: Subject to the limitations indicated herein, I declare under penalty of perjury that the statements made in this complaint are true and correct to the best of my knowledge belief, judgment, and recollection of the material facts and events of the past 15 years or so. Where I have used data and information obtained from third party resources, I have used my best judgment on the authenticity and accuracy of such information. This declaration is being made in good faith. (Signature)__________________________________ (Date)__________________ 50
"JUDICIAL_MISCONDUCT_COMPLAINT.doc - index"