Press Release




Saturday, August 21, 2010    2:30 PM (EST)
Contact : Press office | 610-688-9471 | info@Jim4US.com



AMICUS CURIAE WELCOME IN PETITION FOR WRIT OF CERTIORARI INVOLVING EGREGIOUS DISMISSAL OF CASE ALLEGING CONSPIRACY TO OBSTRUCT JUSTICE AND RELATED CLAIMS REGARDING HOME HEALTH CARE FAILURE TO CALL AMBULANCE


THIRD CIRCUIT REFUSES PAYMENT OF APPEAL FEE IT ORDERED DESPITE SUBSTANTIAL ERROR NEEDFUL OF REVIEW IN HOME CARE ABANDONMENT CASE

        Pennsylvanian Jim Schneller, litigating in furtherance of the rights of the elderly, nursing home patients, concerned family members, and citizens who are needful of Court action regarding these, has appealed decisions filed by the Third Circuit Court of Appeals which affirm or condone the Eastern District of Pennsylvania, to the Supreme Court of the United States.  The cases  involve intentional torts inflicted by nursing homes has appealed orders deciding appeals  in the Third Circuit Court of Appeals which affirm or condone the Eastern District of Pennsylvania, to the Supreme Court of the United States.  The cases  involve intentional torts of nursing homes , State failure to utilize statutes ensuring protection for the elderly and nursing home patients, violations of the federal assisted suicide funding restriction act, and deprivals, conspiracy and obstruction falling under the federal civil rights act.

      Mr. Schneller's petition for writ of certiorari No.10-144 seeks review and reversal of decisions of the most egregious sort, by both the District Court and the Third Circuit.   

      Amicus Curiae are welcome and may be interested in the pro se / forma pauperis aspect, the deprival of Constitutional rights, or the overt  judicial error of large proportions inflicted, as well as the federal question subject matter including a home care agency's liability for conspiracy to deprive rights to life, health, speech, and right to defend same, for failure to call an ambulance, and leaving the patient alone, despite medical emergency.

      The appeal, No. 10-144, centers on the express error by the Third Circuit in their dismissal of appeal submitted to them by the Clerk for possible summary disposition, in a one sentence order, citing Callihan v. Schneider, 178 F.3d 800, (6th Cir.1999). In Callihan, the 6th Circuit Court of Appeals directs that filing fees must be paid within thirty days of a district court's certification that an appeal in forma pauperis (IFP) would not be taken in good faith. 

      The case had not been certified by the District Court as taken in bad faith. Moreso, dismissal of the case has never been explained in any way other than the vague and inconclusive.   Full and fair appeal promised a strong likelihood of success. The Clerk in fact had approved forma pauperis.   The list of error continues, all of it pointing to a summary ending of a case through collusion of the District Court and Appellate branch.  The Third Circuit in fact permitted the summary action in conflict with 3d Ct. I.O.P. Rule 10.6 because they did not "afford the parties an opportunity to submit argument in support of or in opposition to such disposition if briefs on the merits have not already been filed" and also because the decision has not been made " by unanimous vote of the panel." 

 
       Defendants remained in the background, and thus the District Court's order of dismissal was made without anyone having been brought onto the docket.  In three concurrent appeals of plaintiffs', involving equally serious torts and deprivals of rights, the dismissals ordered by the District Court were reversed since they had been imposed without any party having been served, with instructions for service.

       Unfairness was continually discouraged along the way by plaintiff, raising the principles that govern summary dismissals of forma pauperis cases.  The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims."  Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) 

        In Callihan v. Schneider, 178 F.3d 800, (1999), cited by the Court, the 6th Circuit directs that filing fees must be paid within thirty days of a district court's certification that an appeal in forma pauperis (IFP) would not be taken in good faith. This case has not been so certified by the District Court.  The 3d Circuit has allowed payment by plaintiff of the docketing fee in appeal No. 07-2268(James Schneller et al v. Crozer Chester Med. et al) over a three month period, and allowed payment of the fee in the concurrent appeal No. 07-1949 (Schneller et alv. Fox Subacute Nursing et al), after a period of five months. 

        In a second question of procedural importance, plaintiff asks reversal of a decision of a single Justice denying a motion to amend a motion for rehearing, that asked inclusion of substantial, worthy claims, including the recent entry of a first of it's kind Order by the trial Court granting appellant leave to appeal in forma pauperis in another case, and a newly discovered right to motion for default judgment, which was prevented by the trial Court. The Justice who denied petitioner's motion to amend gave no reason for this decision, but the effect was clear.  The appeal went ahead without substantial new evidence that stood likely of deeply affecting the decision.

       Plaintiffs argued aptly in a motion for rehearing, to no avail, including much authority that there is a great responsibility on a Judge who decides a matter as a single Judge, especially in an appeals Court, and that the law consistently follows a rule of thumb of avoiding unfairness. 

       A third issue also looms in this appeal.   The Clerk of the Third Circuit Court of Appeals, despite the fact that the cited Callihan case stands for the right to pay the appeal fee, erred egregiously in refusing leave to pay the fee and in hypertechnically declaring petitioner's prompt request to pay the fee to be an impermissible "second motion for rehearing," and refusing a motion to bring the matter before the Court !  The 3d Circuit had allowed payment by plaintiff of the docketing fee in concurrent appeals after a period of five months and three months. 


     Potential amicus curiae and all interested parties are welcome to contact plaintiffs at the numbers listed above.

      Jim Schneller is a candidate for the U.S. House of Representative for the 7th district of  Pennsylvania and has litigated many different issues of public importance, generally described at the campaign website here.

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