Case: 22-1364 Document: 00117902823 Page:1 Date Filed: 07/27/2022 Entry ID: 6510228 NO: 22-1364 United States Court of Appeals for the First Circuit SENSA VEROGNA, Plaintiff-Appellee, v. JUDGE ANDREA JOHNSTONE IN HER PERSONAL CAPACITY; JUDGE STEVEN J. MCAULIFFE, IN HIS PERSONAL CAPACITY; JULIE E. SCHWARTZ, ESQ.; AND JONATHAN M. ECK, ESQ., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE BRIEF OF DEFENDANT-APPELLEE JONATHAN ECK Edwin F. Landers, Jr., #83536 [email protected] Linda M. Smith, #1171879 [email protected] MORRISON MAHONEY LLP 650 Elm Street Manchester, NH 03101 Phone: (603) 622-3400 Defendant-Appellee Dated: July 27, 2022Case: 22-1364 Document: 00117902823 Page:2 Date Filed: 07/27/2022 Entry ID: 6510228 TABLE OF CONTENTS TABLE OF AUTHORITIES.. STATEMENT OF ISSUES STATEMENT OF THE CASE. A. THE DISTRICT COURT MATTE) B, THE TWITTER MATTER STANDARD OF REVIEW SUMMARY OF ARGUMENT. ARGUMEN’ 1. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF’S COMPLAINT. A. The District Court Properly Found that it Lacked Subject-Matter Jurisdiction over Plaintiff's Complaint. B. The District Court Properly Dismissed Plaintiff's Claims Under 42 U.S.C. §1985(2) and (3) As He Fails to State a Claim for which Relief Can Be Granted. 1. Claims of Violation of Constitutional Rights... 2. Plaintiff has not sufficiently alleged a claim under 42 U.S.C. §1985(2) 3. Plaintiff Has Not Sufficiently Alleged a Claim Under 42 U.S.C. §1985(3) .. C. Plaintiff's Bivens Claim Was Properly Dismissed as his Allegations Do Not Support a Common-Law Bivens Claim as a Matter of Lay I. JUDGE MCCAFFERTY PROPERLY DENIED PLAINTIFF’S MOTION TO RECUSE.. I. THE DISTRICT COURT PROPERLY FOUND THAT JUDICIAL IMMUNITY BARRED SUIT AGAINST THE JUDICIAL DEFENDANTS. IV. PLAINTIFF FAILS TO ADEQUATELY ADDRESS THE DISTRICT COURT’S VARIOUS OTHER RULINGS IN HIS BRIEF, AND THUS HIS ARGUMENTS CONCERNING THE SAME ARE WAIVED. CONCLUSIONCase: 22-1364 Document: 00117902823 Page:3 Date Filed: 07/27/2022 Entry ID: 6510228 TABLE OF AUTHORITIES Cases Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)... Beddall v. State St, Bank & Trust Co., 137 F.3d 12 (1% Cir. 1998)..... Brady v. Howard, 2022 DNH 006 ... Bums v, State Police Association of Massachusetts, 230 F.3d 8 (1* Cir. 2000) Callaghan v. Shirazi, 215 F.3d 1312 (1* Cir, 2000 Clorox Co. DeMay v. Nugent, 517 F.3d 11 (2008) Dennis v Sparks, 449 U.S. 24 (1980)... Hugel v. Milberg, Weiss, Bershad, Hynes & Lerach, LLP, 175 F.3d 14 (1* Cir, 1999). Kirkland v. Bianco, 595 F.2d 797 (1984) 14 McGranahan v. Dahar, 119 N.H. 758 (1979) 24, 25 McLean v. Int’l Harvester Co., 817 F.2d 1214 (5! Cir. 1987)... Neitzke v. Williams, 490 U.S. 319 (1989)... Perez-Sanchez v. Public Building Authority, 531 F.3d 104 (1 Cir. 2008)... Provencher v. Buzzell-Plourde Associates, 142 N.H. 848 (1998)... Reyes-Gareia v. Rodriguez & Del Valle, Inc., 82 F.3d 11 (Ist Cir. 1996)... 9,23 Rockwell v. Cape Cod Hosp., 26 F.3d 254 (1* Cir. 1994). Rodriguez v. Municipality of San Juan, 659 F.3d 168 (Ist Cir. 2011) Rodriguez-Machado v. Shinseki, 700 F.3d 48 (Ist Cir. 2012) Rui Yang v. Holder, 664 F.3d 580 (5th Cir. 2011).... Slotnick v. Garfinkle, 632 F.2d 163 (1* Cir. 1980)... Swan v. Barbardoro, 520 F.3d 24 (1* Cir. 2008). 23 Tejada-Batista v. Morales, 424 F.3d 97 (Ist Cir. 2005) 27 Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438 (1* Cir. 1992) 9 United States v. Lopez, 944 F.2d 33 (1* Cir. 1991) 9 Uphoff Figueroa v. Alejandro, 597 F.3d 423 (1* Cir. 2010)..... iiCase: 22-1364 Document: 00117902823 Page:4 Date Filed: 07/27/2022 Entry ID: 6510228 ‘Venegas-Hernandez v. Sonolux Records, 370 F.3d 183 (2004)....sorcmeenenns Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).. Statutes 42 USC. §1983.... 18, 21 42 US.C. §1985(2) 1,2, 14, 15, 16, 19 42 US.C. §1985(3) 42 USC. §1986.. 42 US.C. 1988 cssotcsrnnsnnenee 2,16, 19 2,4, 10, 16 sence Rules Fed. R. App. P. 28(a)(8)(A) 26 iiiCase: 22-1364 Document: 00117902823 Page:5 Date Filed: 07/27/2022 Entry ID: 6510228 STATEMENT OF ISSUES 1. Did the District Court properly dismiss Plaintiff's Complaint where (a) the District Court lacked subject-matter jurisdiction to hear the case given Plaintiff's allegations stem from a claim of improprieties in connection with another pending District Court matter, i.e., that pleadings filed in another matter were wrongfully accepted and ruled upon by the District Court, (b) the Complaint was frivolous, and (c) the Complaint otherwise fails to state a claim upon which relief may be granted, as: (i) __ it does not sufficiently allege a conspiracy under 42 U.S.C. $1985(2), (i) it does not sufficiently allege deterrence through force, intimidation or threat, as required under 42 U.S.C. §1985(2), and (iii) it does not sufficiently allege a Bivens claim against Eck, as he is not a federal official? v . Did the District Court correctly determine that judicial immunity barred Plaintiff's claims against the Judicial Defendants? 3. Did the District Court properly deny Plaintiff's Motion to Recuse, given that recusal was unnecessary given the frivolity of the Complaint?Case: 22-1364 Document: 00117902823 Page:6 Date Filed: 07/27/2022 Entry ID: 6510228 STATEMENT OF THE CASE This is a pro se appeal from the District Court’s decision dismissing Plaintiff's Complaint sua sponte, denying his motion to vacate dismissal, and denying his motion for recusal. (Doc. #30.)! A. THE DISTRICT COURT MATTER On 12/8/21, Plaintiff filed his Complaint in District Court against Attorney Jonathan Eck (“Eck”), Attorney Julie E, Schwartz (“Schwartz”), Judge Andrea Johnstone, and Judge Steven McAuliffe. (Doc. #1.) Giving rise to the Complaint is Plaintiff's notion and allegation that pleadings filed in the matter of Verogna v. Twitter, 1:20-CV-00536 (hereinafter the “Twitter Matter”) and in other, separate matters were nullities, as they purportedly should not have been accepted by the District Court. Plaintiff further alleges a conspiracy among Eck and Schwartz (who collectively represented Twitter in the Twitter Matter), and Judge Johnstone and Judge McAuliffe (who each issued rulings in the Twitter Matter). Because the complained-of pleadings were accepted, Plaintiff claims that his constitutional rights have been violated. Specifically, the Complaint contains the following Counts: Count Violation of 42 U.S. Code §1985(2) (Clause 1) and §1985(3) (Doc. #1, pp. 80-93, 9 216-256.) Count II Violations of 42 U.S. Code §1986 (Doc. #1, pp. 93-97, $f] 257- 271.) 1 Eck shall refer to the District Court record with the applicable PACER reference to document number.Case: 22-1364 Document: 00117902823 Page:7 Date Filed: 07/27/2022 Entry ID: 6510228 Count III Bivens (1971) Violations (Doc. #1, pp. 97-105; 4] 272-304.) Count IV Punitive Damages. (Doc. #1, p. 105, 305-306.) In Count I, Plaintiff alleges that Judge Johnstone and Judge McAuliffe (collectively the “Judicial Defendants”) breached a duty to him inasmuch as he claims there was a lack of due process and faimess related to policies of the Court, his view that the Court permitted the filing of “illegal pleadings,” his claim of a failure to rule on jurisdiction, a conspiracy against and coercion of Plaintiff in some fashion, and that he was “damaged” “in his person and property.” (Doc. #1, §¥[217- 235.) Further, Plaintiff alleges that all defendants “privately conspired” “in favor of Twitter,” each conspirator had a duty to speak the truth, that the Court somehow gave “legal advice” to Twitter, and all deprived Plaintiff of “the due orderly administration of law and justice.” (Doc. #1, f] 236-241.) Plaintiff claims as injury “diminished leverage” in contract settlement negotiations, discrimination claims, a diminished position in litigation, emotional damages, “moral disenfranchisement,” and attorneys’ fees. (Doc. #1, 4250.) In Count II, Plaintiff alleges that all defendants participated in a conspiracy and neglected or refused to prevent the alleged §1985 conspiracy. (Doc. #1, 262.) In Count III, Plaintiff alleges wrongdoing by the Judicial Defendants acting under the color of federal authority in failing to protect his constitutionally protected right to due process, right to a jury trial, and right to equal protection of the law, primarily as “Coie and partner attorneys Mrazik and Schwartz of Coie” were