Motion..to withdraw Motion to dismiss for Frivolity

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

PLAINTIFF WILLIAM THOMAS' MOTION TO WITHDRAW HIS MOTION TO
DISMISS FOR FRIVOLITY

INTRODUCTION

To insure there is no misunderstanding: I never thought for a nanosecond that this matter was frivolous. Due to pro se imprecision, perhaps, it may not be clear that my Alternative Motion (January 11, 1995) was for a "sua sponte" dismissal (Proposed Order, id, footnote 1), or that I had merely drafted a Proposed Order "for the Court's convenience." Op cit.

BACKGROUND

At this point the Record shows:

(1) Plaintiffs have submitted sworn declarations and evidentiary documentation to the Record, and were ready to present testimony at the January 6th TRO hearing;

(2) because "the Court found (it would) afford the Government an opportunity to respond" (Order, January 9, 1995, pg. 2), defendants had a most generous 15 days to prepare for a routine TRO hearing, but still weren't ready to put on witnesses or add anything but opinions and argument to the Record;

(3) to date, in fact (with one possible exception, see, "Plaintiffs Motion to Strike Randy Meyers' January 20, 1995 Letter from the Record," filed this date), defendants have submitted nothing more than argument to the Record of this case.

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DISCUSSION

Seen in this light (and notwithstanding the Court's reference [id. pg. 1] to United States v. Pollard, 959 F.2d 1011, 1031), since Mr. Meyers' letter "to Thomas" wasn't even in existence ** much less in the Record ** at the time of the TRO hearing, by virtue of the fact that defendants had NO evidence, especially since Your Honor has conceded he "is obliged to follow the law" (Order, January 27, 1995, pg. 3), it seems plaintiffs couldn't possibly [1] have failed to meet whatever lofty burden of proof standard the Court may have realistically imposed. On the Record, it could certainly seem as if someone is trying to avoid a resolution of the merits.

Even at the risk of sounding stubborn or offending the Court even further, [2] I still have to be honest concerning the Court's refusal to recuse itself. [3] Thus, I must admit a lingering

[1 Unless, of course, for no apparent reason, the Court thinks, plaintiffs just lied about everything in their complaint. In that case, one can only wonder why the Court didn't hold a hearing to determine if plaintiffs made the whole thing up, because then they would be guilty of far more than frivolity.]

[2 It is hoped the Court won't take any of this personally, I'm just doing my level uneducated best to utilize the fact finding PROCESS to resolve what, with the utmost sincerity and in all good faith, I see as an extremely serious situation. Any notion the Court might entertain to the contrary, would really be mistaken. Being an optimist, however, I press on in the hope the Court may change its' view and look at things from a more factual perspective.]

[3 I still think the Court should have removed itself. After all, the Court's Order of January 9, 1995 directed the U.S. Marshal to serve process, which we asserted, should have been done in the first place. Had it been done in the first place there would have been a prompt TRO hearing, "as the law requires," on plaintiffs' Application.

Anyway, by delivering the papers to '555 4th Street NW,"
Continued.]

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impression that the Court is more interested in entertaining Defendants' Motion to Dismiss than in conducting a Preliminary Injunction hearing, as I believe the Rules require.

Defendants have interposed an arguably illogical Opposition to the Motion to Dismiss for Frivolity. I may be mistaken, but I don't think many people reviewing the Record in this case will be able to honestly think plaintiffs were trying to avoid anything more than having this case kicked out of the fact-finding system, before any facts are even peeked at, thus enabling defendants to whitewash the fact that, under color of regulations, they had washed their hands in the blood of Marcelino Corneil.

I have no objection if this Court wishes to make a sua sponte dismissal of this complaint for frivolity, either using my

[3 Continued
a building with no tenants except "the U.S. Attorney," Mr. Kahn did precisely what the Certificate said he did, and service of process was indeed completed prior to filing the Complaint.
The fact that Ms. Rider may claim she didn't receive the papers (which should have been served by the U.S. Marshal anyway) on the day Mr. Kahn served them should present a problem for anybody professing dedication to justice. In the interests of simple PROCESS, if not justice, this problem really needs to be resolved. Unless "due process" is supposed to be a sham, the U.S. Attorney's Office cannot be allowed to plead, "Somewhere between the front door and the proper cubical, the papers got misdirected, we don't know where they are, so we don't have to pay any attention to them." Otherwise, if the Court should credit this incredible idea, justice, or just process would become contingent on whether the U.S. Attorney chooses to admit or deny receiving the papers.
I still think it was inappropriate for the Court to use "the holiday season" as an excuse. If this particular Court was too busy or shorthanded, the Court should have passed the case to another judge. Of course, I've said all this before (Proposed Order to Dismiss for Frivolity, pg. 2, n. 2, but, being a skeptic, I just can't help wondering whether the Court is actually reading any of the papers anyway. See, "Joint Motion of Concepcion Picciotto and Ellen Thomas for Leave to File Out of Time Replies to the Documents Filed by Defendants on January 24, 1995," filed February 3, 1995]

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Proposed Order, or by fabricating its own. But, for the Court to imply that "frivolity" in this case originated in my head, would be an error. E.g., Court's Order, January 9, 1995, pg. 2.

If the Court thinks it doesn't want to listen to the case, by all means, dismiss it as frivolous. But, please, do it sua sponte, because I wouldn't be able to appeal a decision which granted my own motion.

Frankly, having written what I just did, if the Court were now to try to make it appear as if the case were being dismissed on my motion, it might seem just a little more reasonable to suspect that the Court might be trying to hinder appellate review, intended to determine whether or not the Court had actually been doing the right thing, with the effect if not purpose of depriving plaintiffs of meaningful access to the courts.

CONCLUSION

Therefore, if the Court is thinking about signing a sua sponte Order to Dismiss for Frivolity, I have no problem (beyond a deeply held compassionate concern for the Court's Immortal Soul), and will promptly file an appeal. However, unless this Court honorably represents the dismissal as sua sponte, as opposed to merely GRANTING plaintiff Thomas' Motion to Dismiss his own complaint, thereby possibly throwing a monkey wrench in the appellate review PROCESS, I hereby move to withdraw my Motion to Dismiss for Frivolity.

For the Court's convenience a proposed Order is attached.

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Respectfully submitted this ____ day of February, 1995,

______________________
William Thomas
2817 11th Street N.W.
Washington, D.C. 20005
202-462-0757

CERTIFICATE OF SERVICE

I hereby state that, on February__, 1995, I served a copy of the foregoing Motion by Plaintiff William Thomas to Withdraw His Motion to Dismiss for Frivolity upon the office of Assistant United States Attorney Sally Rider at 555 4th Street NW, Washington, D.C. ROOM 10-808, by HAND DELIVERY.

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