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Consolidate for Appeal, Huminski v. Hon. John E. Steele

Consolidate for Appeal, Huminski v. Hon. John E. Steele

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Published by Sheriff_Joe_Arpaio
This judge refuses to allow the U.S. Attorney come in and act as his defense counsel. Is it because this judge's conduct constitutes criminal violations of Title 18?
This judge refuses to allow the U.S. Attorney come in and act as his defense counsel. Is it because this judge's conduct constitutes criminal violations of Title 18?

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Published by: Sheriff_Joe_Arpaio on May 28, 2014
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07/13/2014

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 In The
United States District Court (Fort Myers)
S
COTT
H
UMINSKI
, for himself and ) Those similarly situated, ) CIVIL ACTION P
LAINTIFF
 ) v. ) DOCKET NO. H
ON
J
OHN
E.
 
S
TEELE
, E
T
A
L
.,
 
) 2:13-
CV
-692-F
TM
-29
DNF
 D
EFENDANTS
. )
MOTION TO CONSOLIDATE WITH HUMINSKI V. VERMONT FOR APPEAL, RE: BOTH CASES SUA SPONTE SUMMARILY DISMISSED VIOLATIVE OF HUMINSKI V. LAVOIE
 NOW COMES, Scott Humi
nski (“Huminski”), and moves
 to consolidate this sua sponte summarily dismissed case with Huminski v. Vermont, a case that was also sua sponte summarily dismissed because both appeals will address the constitutionality of sua sponte summary dismissals. The appellate court should not be burdened with consolidation and this Court should have granted consolidation in 2013 when Huminski moved for it and there would have been no sua sponte summary dismissals. Huminski v. Vermont was sua sponte
summarily dismissed in the “interests of justice”
despite the fact that the interests of justice must coincide with the U.S. Constitution which  prohibits sua sponte summary dismissals under the First Amendment and Due Process. Huminski v. Steele, the instant matter, was dimissed based upon absolute immunity despite the fact that the pleadings against defendant Steele only sought declaratory relief. Immunity does not apply to declaratory or injunctive relief. It is now apparent that injunctive relief is necessary to end the use of sua sponte summary dismissals as an alarming pattern has
evolved concerning defendant Steele’s patently illegal conduct towards Huminski and the
repeated use of the draconian technique of sua sponte summary dismissal. Had Huminski been given notice of the looming sua sponte dismissal in Huminski v. Vermont, he would have advised the Court that he wished to prosecute the pleadings in Huminski v. Vermont and he would have dismissed the original pleading in the instant matter. A function Huminski tried to accomplish with his motion to consolidate from 2013. Had Huminski been given notice of the looming sua sponte dismissal in Huminski v. Steele, he would have alerted the Court to the fact that he was seeking no monetary relief (clearly evident in the third amended complaint), thus, absolute immunity did not apply.
 
 It is no coincidence that both cases Huminski filed that were presided over by defendant Steele were sua sponte summarily dismissed. Defendant Steele is fond of this illegal maneuver to clear cases from his docket and to withhold justice from indigent and disable individuals.
Defendant Steele’s arrogant refusal to accept the on
-point authority of the full Vermont Supreme Court in Huminski v. LaVoie, 173 Vt. 517, 519-20, 787 A.2d 489, 492-93 (2001) and the other vast authority cited below on the issue of sua sponte summary dismissals reveals that a  judicial impropriety has infected these proceedings and judicial impropriety has chosen the tool of unconstitutional summary dismissals to foist constitutional injury upon Huminski. This
Court’s refusal to adopt the constitutional and well
-founded authority of LaVoie defies logic.
Ironically, this case seeks declaratory relief concerning defendant Steele’s brazen use of
sua sponte summary dismissals and, true to form, defendant Steele simply sua sponte summarily dismissed this case under a bogus defense of absolute immunity in a case that seeks only a declaration. Once again, this Court has endeavored to facilitate an appeal in a case where there has not been an adequate opportunity to develop a record for the forthcoming 11
th
 Circuit appeal condemned in cases cited below
. This Court was warned once about “purported” dismissals that
do not allow claims to be adjudicated. Now another premature appeal is imminent violative of the Constitution, the interests of justice, equity and common sense.
MEMORANDUM, NO JUDGE IN ANY JURISDICTION WOULD BELIEVE THAT SUA SPONTE SUMMARY DISMISSAL AND SUA SPONTE SUMMARY CLOSURE OF A CASE ARE CONSTITUTIONAL
Courts in the United States recognize that notice and opportunity to be heard are mandatory under our constitution concerning
 sua sponte
 dispositive acts of a Court. See Stern v. Superior Court, 105 Cal. App. 4th 223, 231-32, 129 Cal. Rptr.2d 275, 281 (2003) (involving the sua sponte reclassification/reassignment of a case within the local court system); Tidwell v. Tidwell, 251 Ga. App. 863, 864, 554 S.E.2d 822, 823 (2001) (sua sponte entry of summary  judgment); Huminski v. LaVoie, 173 Vt. 517, 519-20, 787 A.2d 489, 492-93 (2001) (sua sponte dismissal of complaint); Government Employees Insurance Co. v. Burns, 672 So. 2d 834 (Fla. App. 1996) (sua sponte transfer of case based on forum non conveniens); King v. Mosher, 137  N.H. 453, 456-57, 629 A.2d 788, 790-91 (1993) (sua sponte dismissal of complaint); Osborn v. Emporium Videos, 848 P.2d 237 (Wyo. 1993) (sua sponte dismissal of complaint); Soebbing v. Carpet Barn, Inc., 109 Nev. 78, 83-84, 847 P.2d 731, 735-36 (1993) (sua sponte entry of
 
 summary judgment); People v. Dolan, 585 N.Y.S.2d 549, 184 A.D.2d 892 (1992) (sua sponte dismissal of indictment); Rubins v. Plummer, 813 P.2d 778, 779-80 (Colo. App. 1991) (sua sponte dismissal of complaint); State v. Langdon, 117 Idaho 115, 785 P.2d 679 (1990) (sua sponte dismissal of appeal); Around the World Importing, Inc. v. Mercantile Trust Co. National Ass'n, 771 S.W.2d 919, 921 (Mo. App. 1989) (sua sponte dismissal of complaint); Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987) (sua sponte dismissal of complaint). There are sound policy reasons not to transform the measured prerogative of
 sua sponte
 dismissal, containing the safeguards of notice and the opportunity to be heard in response, into the drastic prerogative of summary dismissal without those safeguards. As pointed out in Huminski v. Lavoie, although "a claim may be entirely spurious on its face, the court cannot know, without hearing the parties, whether the plaintiff may be able to amend the *** [pleading] sufficiently to state a claim entitling the plaintiff to relief." Huminski, 173 Vt. at 519, 787 A.2d at 492. Thus, summary dismissal can deny a litigant the opportunity to cure a defective pleading. Lease Partners Corp., 329 Ill. App. 3d at 76-77, 768 N.E.2d at 59. Yes, if Huminski had the chance, he would have dismissed this lawsuit and prosecuted the case the Court
 sua sponte
 dismissed as it was the comprehensive Complaint. The decision which pleading to dismiss and which to prosecute was reserved for the Plaintiff Huminski until this Court chose to stand in the shoes of the Plaintiff and decide for him
 sua sponte
. Moreover, as pointed out in Osborn, pro se litigants, such as petitioner, are especially likely to be prejudiced by summary dismissals because their lack of legal acumen contributes to poor pleading. See Osborn, 848 P.2d at 241; accord Palmer, 53 Ill. 2d at 484, 292 N.E.2d at 382 (discussing how inmates' lack of sophistication can lead to their choice of the wrong kind of pleading). Additionally, it has been pointed out that summary dismissal deprives the courts of review of a complete record, possibly facilitating appeals of otherwise meritless cases and leading to overbroad appellate decisions. See Huminski, 173 Vt. at 520, 787 A.2d at 492; Osborn, 848 P.2d at 241. Greenlaw, 128 S. Ct. at 2564; accord Henderson v. Shinseki
, 131 S. Ct. 1197, 1202 (2011) (“Under [our adversary] system, courts are generally limited to addressing the claims and arguments advanced by the parties.”);
McNeil v. Wisconsin, 501 U.S. 171, 1
81 n.2 (1991) (“What makes a system adversarial rather than
inquisitorial is . . . the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments  pro
and con adduced by the parties.”); STEPHAN LANDSMAN, THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 2 (1984) (“The central precept of the adversary
 process is that out of the sharp clash of proofs presented by adversaries in a highly structured

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