The Progress of this case will be followed from a


in chronological order with links to appropriate documents.


             WILLIAM C. HAMMEL,                    |
             ALAN J. BELLAMENTE,                   |
             et al.,                               |      
                  Plaintiff Appellants             |      
                   vs.                             |
                                                   |    PETITION FOR
             INSURANCE CO.,                        |                    
             STATE FARM INDEMNITY COMPANY,         |
             et al.                                |    No. 00-2369
                  Defendant Appellees              |


	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

	United States:


	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.


	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.



	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

	our claims.


	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

	not impossible.

	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.

        Respectfully submitted:

        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

        DATE:                                 DATE:


                          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.

	    INSURANCE CO., 662 A.2d 536, 142 N.J. 336
	    (N.J. 08/01/1995)

	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
	due process

	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.

	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)



Top of Page
Home Page
Insurance Page
Uncivilization and its Discontents
Essay Page

Email me, Bill Hammel at
bhammel AT graham DOT main DOT nc DOT us

The URL for this document is:
Created: April 13, 2001
Last Updated: April 13, 2001