Junk Justice: Bronx Man Claims Federal Court Dismissed His Appeal Before It was Even Filed

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U.S. Federal District Judge Deborah A. Batts

While many Americans often complain that the judicial system is unfair, Benjamin Cunningham, a Bronx resident believes the evidence he's been able to compile on his own case over the last nine years, through his persistence and resiliency, could finally turn the tide in his favor.

He's seen a judge throw out his case only for it to be reversed but, perversely, he says, returned to the same judge to handle; and she dismissed it once again. Yet that didn't stop Cunningham who occasionally has been represented by an attorney and has sometimes represented himself -- pro se, to use the language of the court.

After the judge who handled his civil rights case tossed it for a second time, Cunningham initiated an appeal, and that's where the story gets very interesting. "I think I may have finally caught the court in a lie and will be able to prove it this time," he says.

Cunningham filed his original lawsuit on December 5, 2005 after about a dozen agents from the  U.S. Marshall Services (USMS), from the New York City office, burst into his three-family home on Southern Boulevard, near the Bronx Zoo, with guns drawn and without a search warrant on November 29, 2005 at 5 a.m., he says.

Cunningham says he was dragged outdoors half-naked.

The marshals claimed they were looking for his brother Terrence, an alleged drug dealer who had escaped from Charlotte, North Carolina. The U.S. marshals ransacked Cunningham's home and one of them, Nicholas Ricigliano, allegedly assaulted him with a solid punch in the gut when he kept questioning the armed men and demanding that they show identifications.

Fearful for his life, Cunningham, while still handcuffed, attempted to flee from his own house. He was struck and injured by an MTA bus carrying NYPD police recruits. The marshals dragged him back to the house and they continued turning it upside down, he says. After the marshals left, Cunningham said he discovered he was also missing $4,600 in cash.

Cunningham's 2005 lawsuit was dismissed on July 18, 2007, with prejudice, by U.S. Federal District Judge Deborah A. Batts of the Southern District of New York who said his lawyer, Gary S. Fish, hadn't properly served the government.

When Cunningham filed an appeal Judge Batts wrote to the judges on the U.S. Court of Appeals, Second Circuit, before a ruling was made, claiming that she'd erred in dismissing the case. Judge Batts' decision against Cunningham was reversed; unfortunately for him, the case was returned to the same judge.

"That's really where my nightmare started and continues," Cunningham says. "I could not understand why the second circuit appeals court appellate judges would return my civil rights case to a judge who had already shown herself to be biased against me."

Judge Batts denied Cunningham's motion demanding that she recuse herself from the case. Cunningham also says he's tried for years, without success, to get a copy of the letter Judge Batts wrote to the appellate judges before they sent his case back to her.

After the case was returned to Judge Batts, she referred it to U.S. Magistrate Judge Kevin N. Fox who initially recommended that the government settle with Cunningham. After Cunningham rejected an offer of $30,000 settlement offer, the magistrate judge asked that settlement negotiations start at a six-figure range. The government rejected the judge's recommendation.

The government then filed a motion for summary judgment asking that Cunningham's case be dismissed. The government claimed that even though the USMS agents had mistakenly raided Cunningham's home, they had relied on information from an anonymous confidential informant in Charlotte, North Carolina. The informant, the government claimed, had placed Terrence in Cunningham's Bronx home, meaning even though the agents erred in conducting the warrantless searching, they were still protected by qualified immunity.

Magistrate Judge Fox insisted that the government produce the information from the confidential informant on five occasions, and the government never did, Cunningham recalls. "I don't believe there ever was a confidential informant," he says.

Magistrate Judge Fox concluded that there were conflicting evidence from the government concerning the anonymous confidential informant it claimed to have relied upon. The first report from North Carolina, prepared by the government, claiming that the informant had placed Terrence at his mother's place; a second report, from Manhattan, also prepared by the government, claimed the informant had placed the fugitive Terrence at either his mother's Coop City, Bronx, home or residing in Cunningham's home.

Magistrate Judge Fox denied the government's motion seeking summary judgment on qualified immunity.

In a June 21, 2011 decision, Judge Fox in his report to Judge Batts recommended that Cunningham's case go before a federal jury trial to determine whether his fourth amendment rights against unreasonable searches and seizure had been violated.

If Cunningham thought his case would finally be tried before a jury, those hopes were quickly dashed.  On August 8, 2011, Judge Batts rejected Magistrate Fox's recommendation, granted the government's motion asserting qualified immunity, and dismissed Cunningham's case for a second time.

Cunningham by then had burned through tens of thousands of dollars paying for legal representation from the time he filed the case and on his first federal appeal after Judge Batts dismissed the case the first time. He was unable to work and he continued to receive counseling for the mental and physical stress arising from the marshals' raid, the assault, and the injury sustained when he was struck by the bus, he says.

He concluded he would have to continue the fight by himself. So on September 1, 2011, Cunningham filed in the Southern District Court what's known as an "in forma pauperis" motion, which allows indigent persons to file an appeal, if the court grants the motion, without having to pay the $495 filing fee.

Judge Batts denied Cunningham's "in forma pauperis" motion, ruling that it was not in good faith since his appeal of her dismissal of the case itself would be "frivolous."

"How can an appeal of a case where the Magistrate Judge recommended a trial by jury for my fourth amendment rights be frivolous?" Cunningham says. "And how can that ruling be considered sound considering Judge Batts had already shown bias towards me?"

Here's where Cunningham's says he's finally pinned the courts in "a big lie."

Cunningham was notified on October 11, 2011 by the Second Circuit Court's assigned clerk staff that he had until January 30, 2012, to appeal Judge Batts' dismissal of his case for the second time.

"I did not want to take any chances knowing how the deck was stacked against me," Cunningham says. "Even though I had no money left in my savings, I'm tens of thousands of dollars in debt, my house is in foreclosure, and my marriage's destroyed, I borrowed more money and hired Daniel Eigerman as my lawyer again."

Cunningham signed a retainer agreement with Eigerman, who had also handled his appeal the first time, on November 7, 2011.

After the new year, on January 10, 2012, Eigerman filed his notice of appearance as counsel for Cunningham, the court records show. On January 11, 2012, Eigerman paid the Second Circuit Court's $495 fee to file an appeal on behalf of Cunningham.

Yet, two days later, on January 13, 2012 and well before the January 30, 2012 deadline for Cunningham to file his appeal, the three judges of the U.S. Court of Appeals, Second Circuit-- Ralph K. Winter; Peter W. Hall; and, Denny Chin-- purportedly dismissed the appeal.

The judges' signatures don't appear on the decision, which has an automated signature and stamp of Catherine O'Hagan Wolfe, the clerk, and reads: "Appellant, pro se at the time of filing his motion, moves for leave to proceed in forma pauperis. Upon due consideration, it is hereby ordered that the motion is denied as moot as he has now paid the filing fee. It is further ordered that Appellant's claims are dismissed as frivolous." (The decision attributed to the judges cites case law that a court "can dismiss an appeal or petition for review as frivolous when the appeal or petition presents no arguably meritorious issue for our consideration.")

"First of all, that ruling was wrong, I never filed an in forma pauperis motion before the Second Circuit Court of Appeals so there was nothing to moot. I filed that motion in the District Court and it was denied by Judge Batts on September 11, 2011. It has no connection with the Second Circuit Appeals Court," Cunningham says.

"Second, I did not pay the filing fee in Second Circuit Appeals Court, the appellate court's supposed basis for mooting an in forma pauperis motion, which in any case I did not file with this appeals court. The filing fee in the Second Circuit Appeals Court was paid by Eigerman, who then became my counsel to handle my appeal," he adds.

"So you can see there is a problem. How can an appeal be dismissed by the three judges before my lawyer had even filed it? Where is the brief? I did not file an appeal and since my lawyer was not given the chance to file an appeal, what exactly was dismissed as frivolous?" Cunningham says. "I really think someone jumped the gun and allowed me to catch the court in a lie."

When The Black Star News contacted the Second Circuit Appeals Court's chief clerk Catherine O'Hagan Wolfe and asked whether the court had erred in dismissing Cunningham's case before his lawyer had even filed it, she insisted on a phone interview that that wasn't the case.

O'Hagan Wolfe claims the judges based their decision on the papers that Cunningham had filed on September 1, 2011, even though it had been an in forma pauperis motion, and not an appeal, and it was in a different jurisdiction, the District Court, and was denied by Judge Batts.

O'Hagan Wolfe acknowledged that Eigerman had never filed a brief but added that after the Second Circuit had dismissed Cunningham's own appeal --which, of course Cunningham had never filed since he had hired the lawyer-- Eigerman, according to O'Hagan Wolfe, had then submitted a "motion for reconsideration."

She was reminded by The Black Star News that that was not an appeal, and in any case, what would have the judges reconsidered since an appeal to deny had never been filed.

"I haven't read it but I can see it's long and reads like an appeal," O'Hagan Wolfe said, in a perplexing comment, referring to Eigerman's purported motion for reconsideration.

"That just doesn't make any sense and sounds like a first grade kid explaining what happened to the missing cookies," Cunningham retorts.

"Either the appellate judges acted wrongfully, and unlawfully, or they are not aware of what has transpired and O'Hagan Wolfe and her staff decided to dismiss a fictitious appeal which was never filed. As you know, there have been cases around the country where appeals are dismissed without judges even seeing it. My case my set a record; an appeal supposedly dismissed before it was even filed."

Cunningham has filed a judicial misconduct complaint against Judge Peter W. Hall, one of the three Second Circuit Appeals Court judges who, accordingly to O'Hagan Wolfe, "dismissed" an appeal Cunningham says neither he nor his attorney Eigerman ever filed.  A telephone message from The Black Star News seeking comment, left with the Second Circuit Appeals Court's Chief Judge Robert A. Katzman, was not returned.

Separately, Cunningham filed a notice of claim against O'Hagan Wolfe, alleging that she and her clerk staff prevented Eigerman from filing an appeal, when in fact he had until January 30, 2012, meaning that she and her staff "tortiously" interfered with the retainer agreement contract between him and Eigerman, the lawyer.

Additionally, Cunningham has filed a Departmental Disciplinary Committee for the First Judicial Department complaint against Eigerman, for failing to mention in his motion for reconsideration filed January 27, 2012 that he had in fact never been afforded the opportunity to file an appeal; instead Eigerman, Cunningham contends, asserted that the case should not have been dismissed as frivolous since it involved Cunningham's fourth amendment rights. "How could be discuss the merits when neither he nor I had filed an appeal? He too was dealing with fiction in his motion for reconsideration," Cunningham concludes.

The First Judicial Department handles complaints against lawyers whose offices are in Manhattan, as is Eigerman's, or The Bronx. Anthony Rodriguez, an investigator assigned on Cunningham's case didn't return a phone message seeking comment.

Julie Allsman, counsel for the Grievance Committee of the Southern District of New York Court confirmed being aware of Cunningham's grievance complaint against Eigerman but says she couldn't discuss details of the case which, she says, will be forwarded to an 11-judge panel to review. Cunningham in his papers to the Grievance Committee says Eigerman told him he doesn't have malpractice insurance coverage.

Eigerman did not return two calls, one to his office and another to his mobile phone, from The Black Star News seeking comment for this article.

Judge Deborah A. Batts didn't respond to an inquiry for an earlier article about Cunningham's case; a spokesperson for the Southern District Court also didn't respond.

In November 2014, Judge Batts took the witness stand in a hearing to decide whether her courtroom, in violation of the Sixth Amendment, was closed to the public during the corruption trial of Larry Seabrook, a former New York City council member.

(Separately, Eigerman also filed a motion to the U.S. Supreme Court, also known as a "writ of certiorari," for the violation of Cunningham's constitutionally guaranteed 4th amendment rights against unreasonable searches and seizures; the Supreme Court declined Cunningham's writ of certiorari." Cunningham says in light of the "unlawful" and "wrongful" dismissal of an appeal which was never filed, his fight for justice has now reverted back to the Second Circuit Appeals Court).


If you have a similar well-documented involving injustice please send an e-mail message with details to milton@blackstarnews.com



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