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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)
SCOTT HUMINSKI, for himself and )
Those similarly situated, ) CIVIL ACTION
PLAINTIFF )
v. ) DOCKET NO.
HON JOHN E. STEELE, ET AL., ) 2:13-CV-692-FTM-29DNF
DEFENDANTS. )
MOTION TO CONSOLIDATE WITH HUMINSKI V. VERMONT FOR
APPEAL, RE: BOTH CASES SUA SPONTE SUMMARILY DISMISSED
VIOLATIVE OF HUMINSKI V. LAVOIE

NOW COMES, Scott Huminski (“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, 181 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



forensic setting is most likely to come the information upon which a neutral and passive decision
maker can base the resolution of a litigated dispute acceptable to both the parties and society.”).
See Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and
concurring in the judgment) (observing that “[o]ur adversary system is designed around the
premise that the parties know what is best for them, and are responsible for advancing the facts
and arguments entitling them to relief”). Indeed, if a judge did know as much about the case as
the parties, the judge might well have to recuse. See 28 U.S.C. § 455(b)(1) (2006) (requiring a
federal judge to “disqualify himself” if he has “personal knowledge of disputed evidentiary facts
concerning the proceedings”).

Also see, Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447, 502 (2009)
“The fear is that judges will be unable to remain impartial when deciding legal
questions that they themselves have inserted into the litigation. Furthermore, the
appearance of justice might suffer because the litigants and the general public
might conclude that the judge is now a partisan player in the litigation rather than
a detached observer to the dispute.”

See Dennis v. United States, 384 U.S. 855, 875 (1966); see also Frost, supra note 27, at
506–07 (“In contrast [to judges], private litigants will bring those cases most important to them,
and are well situated, and highly motivated, to unearth the facts and sources of law that will
support their case.”). Exactly, Huminski knows that the sua sponte dismissed Complaint was
comprehensive and more complete and would have dismissed this action to pursue Huminski v.
Vermont. The Court unjustly made the decision of what pleading should be prosecuted for the
Plaintiff against the will and desire of the plaintiff.
This Court must regulate its conduct in accordance with federal law including the Bill of
Rights and allow notice and opportunity to be heard. Had the Court drafted a sua sponte motion
to dismiss and served Huminski, Huminski (who already moved to consolidate cases) would
have simply informed the Court as to which complaint and case he wished to prosecute. This is
the choice of a party, not a choice for the Court. This decision of a litigant as to venue and what
to include in pleadings is a right private to the parties. A judge should not trespass on a parties’
right to litigate where, when and how they wish. Similarly, this Court’s comments concerning
personal jurisdiction are also reserved for the parties, exclusively, and in an adversarial non-sua-
sponte setting. In this matter, the Court has made statements in orders concerning matters
reserved for the parties and, indeed has acted as a party.



In the context of American jurisprudence, notice and opportunity to be heard are ancient
and well-settled law. Huminski’s arguments here in support of these rudimentary and
fundamental justice precepts reveal that this Court has wandered so far from the founding
principles and constitution, so far, that an ordinary citizen, Huminski, has been required to tutor
this Article III Court concerning the First Amendment and Due Process which are patently
violated by a sua sponte closure less than a week after filing of a 500 page pleading. It is
doubtful that the Court could have even read, analyzed and evaluated the sua sponte dismissed
pleading prior to dismissing it. The dismissed Complaint was filed in the afternoon on 9/25/2013,
a Wednesday, the Court only had the nearly 500 page pleading in possession for 3 (three) full
business days prior to dismissal on Tuesday, October 1, 2013. It is likely that the Court
dismissed the action without reading it. This proposition is supported by the Court’s statement
that the pleadings in the 2 cases were exact “duplicates” when a simple counting of the
defendants reveals one case with 40 defendants and the other with 20. “Duplicate”
characterization of the two pleadings is pure fraud and deceit akin to a technique that may be
employed by a dishonest adversary.

Dated at Bonita Springs, Florida this 28
th
day of May, 2014.


__________________________________
Scott Huminski, pro se
24544 Kingfish St.
Bonita Springs, FL 34134
(239) 300-6656
s_huminski@live.com

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