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IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM C. HAMMEL, |
ALAN J. BELLAMENTE, |
et al., |
Plaintiff Appellants |
| PETITION FOR
STATE FARM MUTUAL AUTOMOBILE | REHEARING
INSURANCE CO., |
STATE FARM INDEMNITY COMPANY, |
et al. | No. 00-2369
Defendant Appellees |
INTRODUCTION AND 40(b) STATEMENT OF PURPOSE
The panel decision conflicts with a decisions of the United
States Supreme Court in [Murray's Lessee v. Hoboken Land &
Improvement Company 1856], [Schweiker 1981], [Regan 1983],
[Daniels 1986] and other decisions of the US Supreme Court,
and other decisions by Appeals Courts in which a plaintiff's
rights to equal protection under the laws and the right to due
process [Kaoru 1903] have been restored; there was no opinion
expressed by the panel, leaving stand the District Court's
dismissal with prejudice. Rehearing by the panel is therefore
necessary to secure and maintain uniformity of the court's
In our judgment, the following procedural issues are
violative of our rights under the Constitution of the
1) The district court has violated our Constitutional rights
under the Fifth and Fourteenth Amendments to due process
through its improper behavior;
2) The district court has violated our Constitutional rights
under the Fifth and Fourteenth Amendments to due process
through its fundamentally unfair behavior;
3) The district court has not given due regard to our pleadings
in fact and in law.
4) The district court's dismissal with prejudice was not proper
and should not stand;
5) We should have been granted the relief sought in our
Objections to the Magistrate's Memorandum and Recommendations.
Without the operative elements of equal protection and due
process, most especially within the courts themselves, there can
be only governmental tyranny, and that is an essential importance
of this petition.
THE FACTS OF PROCEEDINGS
1) The Magistrate failed to afford us an opportunity to respond
to Defendant's "Response", in which they moved the court to
compel a response to their motion to dismiss, or to amended
our complaint; the Magistrate issued an order for us to
produce a response or a motion to amend along with a proposed
amended complaint" [Mullane 2 1950], [Bertman 1964], [Boyd
2) In this order, the Magistrate improperly ordered that we
file a Motion to Amend, this before any responsive pleading.
The district court thereby violated FRCP Rule 15(a).
3) After complying with the Magistrate's order, submitting a
Response, Motion and "proposed amended complaint", assuming
that the court intended to violate FRCP consistently, we filed
a Motion to correct a serious error in the caption. This
motion was ignored and never ruled on, leaving us completely
ignorant of the district court's intentions and completely
ignorant of the status of our proposed amended complaint.
It was filed by us, but not docketed.
4) There was ample time for the Magistrate to rule on this second
motion to amend, yet even the first improperly ordered motion
was also not ruled on, but saved as a trump card in his
Recommendations to the district court judge.
5) The Magistrate then wrote in his Memorandum and
Recommendations that our original motion should be denied,
"because it was unnecessary", thus defying his original order.
This we understand to be a piece of trickery and deceit
unworthy of a federal court.
6) We asserted these prior instances in our Objections to the
Magistrate's Memorandum and Recommendations, but were ignored,
7) In these objections we also show, in the objective facts of
the pleadings themselves, an apparent bias toward
the defendants, by the Magistrate, through a consistent
ignoration of our pleadings in law or fact to anything.
8) In these same objections, we moved the court, as if in oral
hearing to be relieved of the Magistrate's original order
and be permitted to submit an amended complaint. This
has never been responded to.
9) The district court then decided in its Memorandum and Order
that we should be dismissed with prejudice on grounds of
res judicata and New Jersey's entire controversy doctrine,
"adopting" wholesale the clearly defective Recommendations.
10) We have shown in our Response to Defendants' motion to
dismiss, in our Objections, and in our Appeal why
preclusionary principles are not applicable to our action,
which is to say three times now.
11) We submitted a motion to the district court for a seven week
continuance for Bellamente's lumbar surgery on 26 April,
2000; it was not ruled on until September 21, 2000.
12) We have shown in our Appeal how it is that there is no
substantive cause for dismissal, and how the final messiness
and confusion of pleadings is a direct result of the district
court's peculiar, improper actions.
13) All our attempts at remedy within the district court have
been met with inappropriate silence and inaction.
ARGUMENT FOR REHEARING:
The Fourth Circuit Court of Appeals having affirmed the district
court's dismissal, we petition the Court for a rehearing.
Memorandum Attachment to Informal Brief is realleged by reference
here as "Appeal".
In our Appeal, though laying the foundations, we failed to call
things by their rightful names. In particular, we call to the
Court's attention that the facts alleged above constitute
violations of our Constitutional rights of Equal Protection of
the Laws [Schweiker 1981], [Regan 1983] and to Procedural Due
Process under the Fifth Amendment [Boyd 1886], [Murray's Lessee
1856]. Said violations were under the control and direction of
the district court, and cannot be not a matter of accident or
simple negligence [Parratt 1981].
We also call to the Court's attention the procedural disregard
of the facts of the case and then consequently of the merits of
By its wholesale adoption of the Magistrate's Recommendations
[Record: vol. 4, # 45], the district court has clearly impugned
the merits of our case [Record: vol. 4, # 50].
We understand both the Recommendation and its adoption, to be
evidence of an irrational and invidious discrimination [Bolling
1954], [Dandridge 1970] by the court, based on the only essential
difference that is apparent between us and other litigants,
namely: our Pro Se status. Though this test is customarily
applied to statutes, it may just as easily be applied to actions
of governmental representatives.
The pattern of violations of equal protection, detailed in our
original Appeal, logically gives rise to more narrowly understood
and specific violations of Due Process under the Fifth Amendment,
and since the district court applies New Jersey statutes, also
under the Fourteenth Amendment..
The standard of fairness in due process, and the standard of due
processes itself are nowhere as necessarily high as they are on
the judiciary since it is the very definer of this concept,
without which we would be reduced to lawlessness.
Defendants moved for dismissal on FRCP 12(b)(6). The District
Court has purported to apply the principle of res judicata and of
New Jersey's Entire Controversy Doctrine as a bar to our action.
Though a bar thereby may constitute grounds for a dismissal under
12(b)(6), in our Appeal we have shown why the conditions for both
preclusions are not, in fact, met. Rule 3 states that an action
"is commenced by filing a complaint with the court" - our action
brought in district court was not subsequent.
The District Court applies 28 USC 1738, "[it] commands a federal
court to accept the rules chosen by the state from which the
judgment is taken.", [In Re Genesys 1999], We have argued in
Appeal [p. 9] that these rules include the decision of
[Mortgagelinq 1955], where the State of New Jersey, through its
supreme court, has explicitly waived any extraterritorial effect
to its entire controversy doctrine. Given this explicit waiver
in this particular matter, Full Faith and Credit is not offended
by not applying the doctrine.
Moreover, we have also shown, contrary to the District Court's
assertion, that the conditions that must be met by either entire
controversy or res judicata as understood by either New Jersey or
the Fourth Circuit do not comport with the facts. The basic fact
underlying our argument is that our claims do not arise from the
same set of facts or occurances as did our state claims, and that
suit was initiated before the conclusion of the action on those
Most particularly, see our Appeal p. 16. A precedent of
dismissal in a case such as this would give defendants immunity
for any future tortious or criminal acts that they may perpetrate
on plaintiffs, and also give immunity for acts, then known and
unknown, committed during the previously initiated litigation.
This would violate equal protection, due process, and fairness
under constitutional provisions, routinely.
We have therefore been dismissed, with prejudice, improperly,
without equal protection of the laws, without due process under
the laws, and without regard to the merits of our claims.
In the district court's failure to provide us with equal
protection and due process we have suffered deprivation
of our interests in life, liberty and property.
Regarding our life interests: the Defendants have directly caused
us permanent disablement and the loss of the ability to work for
a living [Board of Regents 1972], [Schweiker 1981], [Regan 1983]
as well as other abilities, the loss of businesses and consigned
us both to a life of poverty and permanent pain. Our action
seeks to regain for ourselves as far as possible that which has
been taken from us without due process. These most important
interests of any person's life will also have been taken from us
if the District Court's improper Order and Decision stands.
[Mullane 1 1950]
Regarding our liberty interests, the final dismissal by the
district court would purport to relieve us, improperly, of
our right to legal redress for damages done, and thus cut off
all of our avenues of redress. [Mullane 1 1950]
Regarding our property interests: given the extensive monetary
losses of business and personal properties, only through our
action in District Court can proper recompense be had. [Pruneyard
1980]. It is unlikely that the framers would use "property" in
any greatly divergent meanings twice within the same sentence.
One's liberty interest to litigate in due process is nonexistent
when the factual and legal substance of one's pleadings is
ignored, and so we have been deprived of that fundamental
Constitutional right on successive levels of seeking remedy
for exactly such violations.
The procedural history, listed in our prior pleadings, and
referenced here, presents prima facie evidence of violations of
due process and gross unfairness intending to cut off,
improperly, all of our avenues of redress.
The facts show that our action in the district court is not a
subsequent relitigation, or even relitigation of the same
issues based on the same set of facts.
We have, in some way, been subjected to an active discrimination,
and then have not received equal protection of the laws. The
only way in which we differ from most other litigants is by
appearing Pro Se, and we conclude that this is a basis for such
discrimination. That there may be other bases additionally, is
To summarize and articulate this series of violations of our
Fifth and Fourteenth Amendment rights to due process of law and
equal protection under the law, without attempting to restate
the case, we direct the court's attention to specific portions
of our Appeal:
With regard to amending and/or correcting our complaint:
Issue #2, page 11 through Page 15, paragraph 3 [length],
and Issue #3, Page 13, paragraph 3 through Page 15 [FRCP 15(a)].
With regard to Dismissal under Res Judicata and New Jersey's
Entire Controversy Doctrine:
Issue #1; Page 2 through Page 6, paragraph 2 and Issue #2;
Page 6, paragraph 3 through Page 10, paragraph 1.
With regard to preclusion of our Bad Faith Claims:
Issue #4, pages 16-19.
A complaint should only be dismissed "if it is clear that no
relief could be granted under any set of facts that could be
proven consistent with the allegations.", [Hishon 1984].
Given what we have alleged and shown, in terms of facts, and of
tortious and criminal acts committed by the defendants within a
pattern of racketeering, and in terms of damages to life, body
and property, none of which have been disputed, it is, to us,
amazing that any reasonable man could arrive at such a conclusion,
implicitly dismissing all the merits of all our claims.
We gave notice of the District Court's misapplication and
misapprehension of New Jersey's Entire Controversy Doctrine,
and res judicata citing the understanding of that State's
supreme court in our Appeal.
Though there was a procedure for answering the Magistrate's
Recommendations, and we participated in that procedure by timely
filing our Objections, we question the necessary fairness of any
such actual procedure which does not address the objections
The record shows all of this, and we have called attention to
these facts in our Appeal; as far as we have been permitted to
know, they may not have been seen.
These violations of our rights to due process and equal
protection have tainted all proceedings subsequent to the
Magistrate's improper Order [Record: vol 1-2, #25], of
November 8, 1999, and continue to do so right up to the
filing of this petition.
Our original case filed in District Court was for severe and
extensive damages to our businesses, properties, bodies and
persons in equity. The above violations of equal protection and
due process through the improper actions of the District Court
will have deprived us further of our interests in life, liberty
and property, preventing us from properly attending the original
permanent damages [Kaoru 1903], [Ingraham 1977], [Daniels 1986].
THEREFORE, for all the forgoing reasons, this petition for
rehearing should be granted, this Appeal reheard by the
panel, and our requested relief granted.
William C. Hammel Alan J. Bellamente
A-11 Moose Branch Road, A-11 Moose Branch Road,
Sweetwater Apartments 1A, Sweetwater Apartments 8A,
Robbinsville, NC 28771 Robbinsville, NC 28771
(828) 479-1547 (828) 479-1547
William C. Hammel Alan J. Bellamente
TABLE OF AUTHORITIES
[Bertman 1964] BERTMAN v. J. A. KIRSCH CO. ,
377 U.S. 995 (1964)
But Bertman's counsel (so far as the record shows) is not
Superman, nor should the law expect him to be. The record is
barren of any suggestion that he fell short of the standards
generally expected of a capable lawyer. He relied, as lawyers in
our system of jurisprudence are entitled to do, on the principle
expressed by Daniel Webster when he said that due process means a
law which 'hears before it condemns.' [Board of Regents 1972]
[Board of Regents 1972] BOARD OF REGENTS v. ROTH,
408 U.S. 564 (1972)
This Court has long maintained that "the right to work for a
living in the common occupations of the community is of the very
essence of the personal freedom and opportunity that it was the
purpose of the [Fourteenth] Amendment to secure." Truax v. Raich,
239 U.S. 33, 41 (1915) (Hughes, J.). See also Meyer v. Nebraska,
262 U.S. 390, 399 (1923).
[Bolling 1954] BOLLING v. SHARPE, 347 U.S. 497 (1954)
The Fifth Amendment, which is applicable in the District of
Columbia, does not contain an equal protection clause as does the
Fourteenth Amendment which applies only to the states. But the
concepts of equal protection and due process, both stemming from
our American ideal of fairness, are not mutually exclusive. The
"equal protection of the laws" is a more explicit safeguard of
prohibited unfairness than "due process of law," and, therefore,
we do not imply that the two are always interchangeable phrases.
But, as this Court has recognized, discrimination may be so
unjustifiable as to be violative of due process. 2
[ Footnote 2 ] Detroit Bank v. United States, 317 U.S. 329 ;
Currin v. Wallace, 306 U.S. 1, 13 -14; Steward Machine Co. v.
Davis, 301 U.S. 548, 585 .
[Boyd 1886] BOYD v. U S, 116 U.S. 616 (1886)
It may be that it is the obnoxious thing in its mildest and least
repulsive form; but illegitimate and unconstitutional practices
get their first footing in that way, namely, by silent approaches
and slight deviations from legal modes of procedure. This can
only be obviated by adhering to the rule that constitutional
provisions for the security of person and property should be
liberally construed. A close and literal construction deprives
them of half their efficacy, and leads to gradual depreciation of
the right, as if it consisted more in sound than in substance. It
is the duty of courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments
thereon. Their motto should be obsta principiis.
[Dandridge 1970] DANDRIDGE v. WILLIAMS , 397 U.S. 471 (1970)
... , it may not, of course, impose a regime of invidious
discrimination in violation of the Equal Protection Clause of
the Fourteenth Amendment.
[Daniels 1986] DANIELS v. WILLIAMS, 474 U.S. 327 (1986)
Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The touchstone of
due process is protection of the individual against arbitrary
action of government, Dent v. West Virginia, 129 U.S. 114, 123
(1889)"); Parratt, supra, at 549 (POWELL, J., concurring in
result). By requiring the government to follow appropriate
procedures when its agents decide to "deprive any person of life,
liberty, or property," the Due Process Clause promotes fairness
in such decisions. And by barring certain government actions
regardless of the fairness of the procedures used to implement
them, e. g., Rochin, supra, it serves to prevent governmental
power from being "used for purposes of oppression," Murray's
Lessee [474 U.S. 327, 332] v. Hoboken Land & Improvement Co.,
18 How. 272, 277 (1856) (discussing Due Process Clause of Fifth
[Hishon 1984] HISHON v. KING & SPALDING 467 US 69, 73 (1984)
[Ingraham 1977] INGRAHAM v. WRIGHT, 430 U.S. 651 (1977)
Citing Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 162 -163
(1951) (Frankfurter, J., concurring)., "`[D]ue process,' unlike
some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances. . . .
Representing a profound attitude of fairness . . . `due process'
is compounded of history, reason, the past course of decisions,
and stout confidence in the strength of the democratic faith
which we profess. . . ."
[In Re Genesys 1999] In Re Genesys 198 F.3d 128 (4th Cir. 1999)
[Kaoru 1903] KAORU YAMATAYA v. FISHER, 189 U.S. 86 (1903)
But this court has never held, nor must we now be understood as
holding, that administrative officers, when executing the
provisions of a statute involving the liberty of persons, may
disregard the fundamental principles that inhere in 'due process
of law' as understood at the time of the adoption of the
Constitution. [189 U.S. 86, 101] One of these principles is
that no person shall be deprived of his liberty without
opportunity, at some time, to be heard, before such officers,
in respect of the matters upon which that liberty depends, -not
necessarily an opportunity upon a regular, set occasion, and
according to the forms of judicial procedure, but one that will
secure the prompt, vigorous action contemplated by Congress, and
at the same time be appropriate to the nature of the case upon
which such officers are required to act.
[Mortgagelinq 1955] MORTGAGELINQ CORP. v. COMMONWEALTH LAND TITLE
INSURANCE CO., 662 A.2d 536, 142 N.J. 336
Maintaining a cohesive federal system (and the Full Faith and
Credit Clause melds the state courts into that system) does not
require that the other parts of the federal system honor our
entire controversy doctrine.
[Mullane 1 1950] MULLANE v. CENTRAL HANOVER TR. CO.,
339 U.S. 306 (1950)
In two ways this proceeding does or may deprive beneficiaries of
property. It may cut off their rights to have the trustee answer
for negligent or illegal impairments of their interests. Also,
their interests are presumably subject to diminution in the
proceeding by allowance of fees and expenses to one who, in their
names but without their knowledge, may conduct a fruitless or
uncompensatory contest. Certainly the proceeding is one in which
they may be deprived of property rights and hence notice and
hearing must measure up to the standards of due process.
[Mullane 2 1950] MULLANE v. CENTRAL HANOVER TR. CO.,
339 U.S. 306 (1950)
An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections. Milliken v. Meyer, 311
U.S. 457 ; Grannis v. Ordean, 234 U.S. 385 ; Priest v. Las
Vegas, 232 U.S. 604 ; Roller v. Holly, 176 U.S. 398 . The notice
must be of such nature as reasonably to convey the required
information, Grannis v. Ordean, supra, and it must afford a
reasonable time for those interested to make their appearance,
Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U.S. 71.
But when notice is a person's due, process which is a mere
gesture is not due process. The means employed must be such as
one desirous of actually informing the absentee might reasonably
adopt to accomplish it. The reasonableness and hence the
constitutional validity of any chosen method may be defended on
the ground that it is in itself reasonably certain to inform
those affected, compare Hess v. Pawloski, 274 U.S. 352 , with
Wuchter v. Pizzutti, 276 U.S. 13 , or, where conditions do not
reasonably permit such notice, that the form chosen is not
substantially less likely to bring home notice than other of the
feasible and customary substitutes.
[Murray's Lessee 1856] Murray's Lessee v. Hoboken Land &
Improvement Company, S.C. 18 How. 272 (1856)
"But is it due process of law?" The Constitution contains no
description of those processes which it was intended to allow or
forbid. It does does not even declare what principles are to be
applied to ascertain whether it be due process. It is manifest
that it was not left to the legislative power to enact any
process which might be devised. The is a restraint on the
legislative as well as on the judicial powers of the government
and cannot be so construed as to leave Congress free to make any
process "due process of law," by its mere whim.
[Parratt 1981] PARRATT v. TAYLOR, 451 U.S. 527 (1981)
Simple negligence is not sufficient to implicate violation of
[Pruneyard 1980] PRUNEYARD SHOPPING CENTER v. ROBINS,
447 U.S. 74 (1980)
[ Footnote 6 ] The term "property" as used in the Taking Clause
includes the entire "group of rights inhering in the citizen's
[ownership]." United States v. General Motors Corp., 323 U.S. 373
(1945). It is not used in the "vulgar and untechnical sense of
the physical thing with respect to which the citizen exercises
rights recognized by law. [Instead, it] denote[s] the group of
rights inhering in the citizen's relation to the physical thing,
as the right to possess, use and dispose of it. . . .
The constitutional provision is addressed to every sort of
interest the citizen may possess." Id., at 377-378.
[Regan 1983] REGAN v. TAXATION WITH REPRESENTATION OF WASH.,
461 U.S. 540 (1983)
[ Footnote 2 ] The Due Process Clause imposes on the Federal
Government requirements comparable to those that the Equal
Protection Clause of the Fourteenth Amendment imposes on the
States. E. g., Schweiker v. Wilson, 450 U.S. 221, 226 , n. 6
[Schweiker 1981] SCHWEIKER v. WILSON, 450 U.S. 221 (1981)
[ Footnote 6 ] This Court repeatedly has held that the Fifth
Amendment imposes on the Federal Government the same standard
required of state legislation by the Equal Protection Clause of
the Fourteenth Amendment. See, e. g., Weinberger v. Salfi,
422 U.S. 749, 768 -770 (1975); Richardson v. Belcher, 404 U.S.
78, 81 (1971).
The Constitution of The United States: Amendments V and XIV.
Federal Rules of Civil Procedure: Rule 15(a)
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Created: April 13, 2001
Last Updated: April 13, 2001