UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Case No. 22-1364

_________________________________________

SENSA VEROGNA,
PLAINTIFF - APPELLANT,
- 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,
DEFENDANT- APPELLEE’S.

Appeal from the United States District Court

For the District of New Hampshire, Judge McCafferty,
Case #: 1:21-cv-01047-LM

APPELLANT’S BRIEF

Appellant Plaintiff, PRO SE

Anonymously as Sensa Verogna
SensaVerogna@gmail.com
 TABLE OF CONTENTS

TABLE OF CONTENTS………………………………...…………………..…….i
GLOSSARY………………………………………………………………………..ii
TABLE OF AUTHORITIES…………………………………………………..…..iii
QUESTIONS FOR THE COURT…………………………………………………iv
I. INTRODUCTION……………………………………………………………….1
II. JURISDICTION…………………………………………………...…………….4
III. TWITTER COURT BACKGROUND…………………………………………4
IV. PROCEDURAL BACKGROUND IN THIS CASE…………………………….5
V. LEGAL STANDARDS OF REVIEW……………………………………………6
VI. RECUSAL………………………………………………………………………8
A. Background…………………………………………….………………….8
B. Argument……………………………………………………………....…11
VII. COLLATERAL ESTOPPEL…………………………………………………16
A. Dismissal Order at D. 13…………………………………………………16
B. Reconsideration Order at D. 25……………………………………..….…18
C. Argument……………………………………………………………...….19
VIII. CLASS-BASED ANIMUS………………………………...……………….…23
A. Dismissal Order at D. 13……………………………………………….…23
B. Arguments………………………………………………………………..23
IX. APPELLANT'S 42 U.S. Code § 1985(2)(Clause i)
AND 42 U.S.C. 1985(3) (clause iii) CLAIMS…………………………….………….24
A. Dismissal Order at D. 13………………………………...………………..24
B. Arguments………………………...…………………………………..…..25
C. Further Arguments…………………………………………………….….27
X. APPELLANT'S 42 U.S.C. § 1986 CLAIMS………………………….………….29
XI. APPELLANT'S BIVENS CLAIMS ………………………………..………….29
A. Background………………………………………………………………29
B. JOHNSTONE and MCAULIFFE………………………………….……30
C. ECK and SCHWARTZ……………………………………………..……31
XII. CLAIMS OF JUDICIAL IMMUNITY…………………………………..……34
A. Background……………………………………………...………………..34
B. Argument………………………………………………..………………..37
XIII. AMENDMENT OF CLAIMS……………………………………….……….42
XIV. CONCLUSION………………………………………………………….…..43
XV. CERTIFICATE OF COMPLIANCE…………...…………………………….50
ADDENDUM- ORDERS OF THE
DISTRICT COURT……………………………………………………………...….v

i.
 ii. GLOSSARY
“Appellant” Plaintiff, proceeding anonymously as Sensa Verogna
"Appellees"
“JOHNSTONE” Andrea K. Johnstone, Federal Magistrate Judge for the United
States District Court for the District of New Hampshire.

“ MCAULIFFE” Steven J. McAuliffe, Senior United States Judge for the United
States District Court for the District of New Hampshire.

“SCHWARTZ” Julie E. Schwartz, Partner Attorney of Perkins Coie and Counsel

for Twitter in Appellant’s Case.

“ECK” Jonathan M. Eck, Director Attorney of Orr & Reno and Counsel
for Twitter in Appellant’s Case

“Appeals Court” United States Court of Appeals for the First Circuit
“Court” United States District Court District of New Hampshire
“CASE” US District Court for the District of New Hampshire, No. 1:20-
cv-00536-SM.(hereinafter "Twitter Court" and First Circuit Court
of Appeal No. 22-1933
"[TD. xx]" "Twitter Docket"
"Present Case" US District Court for the District of New Hampshire, Case #:
1:21-cv-01047-LM. On Appeal from the U.S. District Court for
the District of New Hampshire, No. 22-1364
“[D. xx]” Docket number Case No. 1:21-cv-01047-LM.

“MRAZIK” Ryan Mrazik, Partner Attorney of Perkins Coie and Counsel

for Twitter.

“COIE” Perkins Coie LLP. and Counsel for Twitter.

 
ii.
iii. TABLE OF AUTHORITIES

US SUPREME COURT
Ableman v. Booth,
21 Howard 506 (1859)…………………………………………….……………40
Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970)………………………………………………….….32, 33, 48
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)………………………………………..………………..42
Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics,
403 U.S. 388 (1971)…………………………………………………….………..30
Bradley v. Fisher, 13 Wall.,
at 351(1871)………………………………………………………………….38, 39
Brogan v. United States,
118 S. Ct. 805, 809 (1998)………………………………………………………..28
Butz v. Economou,
438 U. S. 478. Pp. 442 U. S. 233-249……………………………………………..31
Celotex Corp. v. Edwards,
514 U.S. 300, 313 (1995)…………………………………………………………16
cf. Rooker v. Fid. Tr. Co.,
263 U.S. 413, 416 (1923)…………………………………………………………16
Davis v. Passman,
442 U.S. 228 (1979)………………………………………………………………31
Dennis v. Sparks,
449 U.S. 24, 30-31 (1980)…………………………………………………34, 38, 48
Doe v. McMillan,
412 U.S. 306, 319-325, 93 S. Ct. 2018,
36 L.Ed.2d 912 (1973)……………………………………………………………47
Forrester v. White,
484 U.S. 219, 227 (1988)……………………………………………………...16, 37
Griffin v. Breckenridge,
403 U.S. 88 (1971)………………………………………………………………..23
Hammerschmidt v. United States,
265 U.S. at 265 U. S. 188…………………………………………………………..1
In re Murchison,
349 U. S. 133, 136 (1955)…………………………………………………….11, 13
Kush v. Rutledge,
103 S. Ct. 1483, 61 WASH. U. L. Q. 849 (1983)…………….……………………23

iii.
Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847 (1988)………………………………………………………………15
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)…………………………………………..42
Mireles v. Waco,
502 U.S. 11 (1991)………………………………………………………………..38
Montana v. United States,
440 U.S. 147, 153 (1979)……………………...…………………………………..21
Mullane v. Central Hanover Bank
(1950)…………………………………………………………………………….11
Nixon v. Fitzgerald,
457 U.S. 747, 102 S. Ct. 2690 (1982)…………….………………………………..42
Pinkerton v. United States,
328 U.S. 640 (1946)………………………………………………………………47
Piper v. Pearson,
2 Gray 120, cited in Bradley v. Fisher,
13 Wall. 335, 20 L.Ed. 646 (1872)………………………………………………...39
Pulliam v. Allen,
466 U.S. 522 (1984). PGE 47
Scheuer v. Rhodes,
416 U. S. 232. Pp. 457 U. S. 806-808…………………………………………….42
Stump v. Sparkman,
435 U.S. 349, 362 (1978)…………………………………………..34, 37, 38, 39, 47
Williams v. Pennsylvania,
579 U.S. ___ (2016)……………………………………………….………….13, 16
Ziglar v. Abbasi,
137 S. Ct. 1857, (2017),
citing Ashcroft v. Iqbal,
556 U.S. 675 (2009)………………………………………………………………29

FIRST CIRCUIT
Allen v. McCurry,
449 U.S. 90, 94 (1980)……………………………………………………………19
Bis-bano v. Strine Printing Co.,
737 F.3d 104, 107 (1st Cir.2013)…………………………………………………..7
Cf. Beddall v. State St. Bank Trust Co.,
137 F.3d 12, 16 (1st Cir. 1998)……………………………………………………..6
Clorox Co. Puerto Rico v. Proctor Gamble,
228 F.3d 24, 30 (1st Cir. 2000)……………………………………………………..8
Cossart v. United Excel Corp.,
804 F.3d 13, 18 (1st Cir. 2015)…………………………………………………...42

iii.
Germanowski v. Harris,
854 F.3d 68, 71 (1st Cir. 2017)…………………………………………………...42
Gonzalez-Gonzalez v. U.S.,
257 F.3d 31, 39 (1st Cir. 2001)…………………………………………………...44
Grella v. Salem Five Cent Savs. Bank,
at 30, 42 F.3d 26 (1st Cir. 1994)………………………………………………17, 45
Hahn v. Sargent,
523 F.2d 461, 469 (1st Cir. 1975)…………………………………………………23
In re United States,
666 F.2d 690, 695 (1st Cir. 1981)…………………………………………………10
Irizarry v. Quiros,
722 F.2d 869, 871 (1st Cir. 1983) ………...………………………………………26
Langadinos v . Am. Airlines, Inc.,
199 F.3d 68, 69 (1st Cir. 2000)…………………………………………………...44
LeBlanc v. B.G.T. Corp.
992 F.2d 394 (1st Cir. 1993)……………………….……………………………..11
Literature, Inc. v. Quinn,
482 F.2d 372, 374 (1st Cir. 1973)………………………………………………….7
McCloskey v. Mueller,
446 F.3d 262 (1st Cir. 2006)……………………………………………………...30
Mulero-Carrillo v. Roman-Hernandez,
790 F.3d 99, 108 (1st Cir. 2015)………………………………………………….34
Nieves-Vega v. Ortiz-Quinones,
443 F.3d 134, 136 (1st Cir. 2006)…………………………….…………………….6
NLRB v. Donna-Lee Sportswear Co., Inc.,
836 F.2d 31, 34 (1st Cir. 1987)………………………..…………………………..17
Nollet v. Justices of Trial Court of Mass.,
83 F. Supp. 2d 204, 208 (D. Mass. 2000),
aff'd, 248 F.3d 1127 (1st Cir. 2000)……………………………………………….44
Powell v. City of Pittsfield,
143 F. Supp. 2d 94 (D. Mass. 2001)………………………………………………24
Rockwell v. Cape Cod Hosp.,
26 F.3d 254, 260 (1st Cir. 1994)…………………………………………………...6
Sheinkopf v. Stone,
927 F.2d 1259, 1262 (1st Cir. 1991)……………………………………………….25
Swan v. Barbadoro,
520 F.3d 24, 26 (1st Cir. 2008)…………………………………………………….9
Tatro v. Kervin,
41 F.3d 9 (1st Cir. 1994)……………………………………...……………………7
United States v. Belanger,
890 F.3d 13, 21 (1st Cir. 2018)……………………………………………………..2

iii.
United States v. Gates,
709 F.3d 58, 69 (1st Cir.2013)……………………………………………………...7
Valentin v. Hospital Bella Vista,
254 F.3d 358, 363 (1st Cir. 2001)…………………………………………………42
Venegas-Hernandez v. Sonolux Records,
370 F.3d 183, 195 (1st Cir. 2004)…………………………………………………..8
Wang v. Xinyi Liu, Yuanlong Huang,
Zhaonan Wang, Bling Entm't, LLC, 584 B.R. 427,
431-32 (D. Mass. 2018)…………………………………………………………...44
Wyatt v. City of Boston,
35 F.3d 13, 14-15 (1st Cir. 1994)…………………………………………………7

OTHER CIRCUITS
AAA Wholesalers Distribution, LLC v.
Tropical Cheese Indus., Inc., C.A. No. 18-542
WES, 3 n.4 (D.R.I. Sep. 3, 2019)…………………………………………………25
Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc.,
763 F.2d 1237, 1238-39 (11th Cir. 1985)…………………………………………..8
Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007)……………………………………………...8
Arthur v. Thomas,
739 F.3d 611, 628 (11th Cir. 2014)……………………………………………….11
Boykins v. Ambridge Area Sch. Dist.,
621 F.2d 75, 80 (3d Cir. 1980)……………………………………………………33
Burton v. Wilmington Parking Auth.,
365 U.S. 715 (1961)………………………………………………………………32
Duty v. City of Springdale,
42 F.3d 460, 462 (8th Cir. 1994)………………………………………………….38
e.g., Baker v. Cuomo,
58 F.3d 814, 818 (2d Cir. 1995)……………………………………………………7
Erebia v. Chrysler Plastic Products Corp.,
891 F.2d 1212 (6th Cir. 1989)………………………………………………...22, 24
Evancho v. Fisher,
423 F .3d 347, 353 (3d Cir. 2005)………………………………………………...33
Franklin v. McCaughtry,
398 F.3d 955 (7th Cir. 2005)…………………………….………………………13
Gallas v. Supreme Court of Pennsylvania,
211 F.3d 768 (2000)…………………………….……………………………….39
Greenway v. Schriro.
(9th Cir.) 2011) 653 F.3d 790, 806……………………………………………….13

iii.
Hampton v. Hanrahan,
600 F.2d 600, 621 (7th Cir. 1979)………………………………………………...33
Harvey v. Plains Twp. Police Dept.,
421 F.3d 185, 195-96 (3d Cir. 2005)……………………………………………...33
Hoffman v. Halden,
supra, 268 F.2d [280] at 295 [(9th Cir. 1959)……………………………………..45
Hoffman v. Halden,
supra, 268 F.2d [280] at 295 [(9th Cir. 1959)……………………………………...46
Hoffman-LaRoche, Inc. v. Greenberg,
447 F.2d 872, 875 (7th Cir. 1971)………………………………………………...33
Hurles v. Ryan,
752 F.3d 768, 788. (9th Cir. 2014)………………………………………………..13
In re Schriver,
218 B.R. 797, 806 (E.D. Va. 1998)………………………………………………..21
In re Varat Enters., Inc.,
81 F.3d 1310, 1315 (4th Cir. 1996)……………………………………………….21
Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974)………………………………………………………………32
Lopez v. Vanderwater,
620 F.2d 1229, 1235-37 (7th Cir. 1980)…………………………………………...38
Moose Lodge No. 107 v. Irvis,
407 U.S. 163 (1972)………………………………………………………………32
Orca Yachts, L.L.C. v. Mollicam, Inc.,
287 F.3d 316, 318 (4th Cir. 2002)………………………………………………...21
Ortiz-Romany v. U.S.,
497 F. Supp. 2d 285, 289 (D.P.R. 2007)………………………………………30, 37
Perez v. Ortiz,
849 F.2d 793, 797 (2d Cir. 1988)…………………………………………………..8
Pratt v. Ventas, Inc.,
365 F.3d 514, 519 (6th Cir. 2004)………………………………………………...17
Rankin v. Howard,
(1980) 633 F.2d 844, cert den…………………………………………………….39
Reed v. Baxter,
134 F.3d 351, 358 (6th Cir. 1998)………………………………………………...11
Slotkin v. Citizens Casualty Co. of New York,
614 F.2d 301 (2d Cir. 1980)……………………………………………………….32
Sparks v. Duval County Ranch Co., Inc.,
604 F.2d 976 (5th Cir. 1979)……………………………………………………..38
United States v. Curran,
20 F.3d 560 (3d Cir. 1994)……………………………………………………….40

iii.
United States v. Pelullo,
964 F.2d 193, 198 (3d Cir. 1992)…………………………………………………11
United States v. Rahm,
993 F.2d 1405, 1410 (9th Cir. 1993)……………………………………………...11
Wright v. No Skiter Inc.,
774 F.2d 422, 426 (10th Cir. 1985)……………………………………………….26
Zeller v. Rankin,
101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326……………………………………39

STATES
Freeman, supra,
47 Cal.4th at p. 1006…………………………………………………….………14
(Wyatt v. Union Mortgage Co.
(1979) 24 Cal.3d 773, 784 [157 Cal.Rptr. 392, 598 P.2d 45]………….……………47
Baldwin v. Escanaba Dealer's Ass'n,
130 N.W. 214, 219 (Mich. 1911)…………………………………………………28
Buckley v. Gray, supra,
110 Cal. at p. 342, 42 P. 900……………………………………………………...32
Casa Herrera, Inc. v. Beydoun
(2004) 32 Cal.4th 336.)…………………………………………………………...14
Catchpole v. Brannon
(1995) 36 Cal.App.4th 237, 245………………………………………………12, 14
Cavanagh v. Fayette County.
Civil Action No. 05-1182 (W.D. Pa. Feb. 27, 2006)………………………………38
Cicone, supra,
183 Cal.App.3d at pp. 201-202, 227 Cal.Rptr. 887………………………………..32
Davis v. Burris,
51 Ariz. 220, 75 P.2d 689 (1938)………………………………………………….39
e.g., Vegelahn v. Guntner,
44 N.E. 1077 (Mass. 1896)……………………………………………………….28
Fire Ins. Exchange, supra,
643 N.E.2d at pp. 312-313……………………………………………………….32
Gonzalez v, Commission on Judicial Performance,
(1983) 33 Cal. 3d 359, 371, 374………………………………………….………12
Goodman v. Kennedy, supra, 18 Cal.3d at p. 346,
134 Cal.Rptr. 375, 556 P.2d 737…………………………………………………32
Guardianship of Simpson v. Brown,
67 Cal. App. 4th 914, 79 Cal. Rptr. 2d 389, 401 (1998)…………………………..19
Hall v. Harker
(1999) 69 Cal.App.4th 836, 841………………………………………………….14

iii.
Hansen v. Anderson, Wilmarth & Van Der Maaten
(Iowa 2001) 630 N.W.2d 818, 825-826 (Hansen )……………………………..31, 32
In re Dubian, 77 B.R. 332, 337
(Bankr. D. Mass. 1987)…………………………………………………………...17
In re Nathaniel P.
(1989) 211 Cal. App. 3d 660, 670 [259 Cal. Rptr. 555]……………………………19
In re Sestito,
136 B.R. 602, 604 (Bankr. D. Mass. 1992)………………………………………...17
In re Sylvia R.
(1997) 55 Cal. App. 4th 559, 563 [64 Cal. Rptr. 2d 93…………………………….19
Jackson v. Rogers & Wells,
supra, 210 Cal.App.3d at p. 345, 258 Cal.Rptr. 454……………………………….32
Litchfield Asset Management Corp. v. Howell,
70 Conn. App. 133, 139 (Conn. App. Ct. 2002)……………………………………7
McLarnon v. Deutsche Bank Nat'l Trust Co.,
Civil Action No. 13-12815-FDS, 4 (D. Mass. Apr. 10, 2014)……………………..13
Oto v. Metro. Life Ins. Co.,
224 F.3d 601, 606 (7th Cir. 2000)………………………………………………….8
Pavicich v. Santucci, supra,
85. Cal.App.4th at pp. 392, 397-398, 102 Cal.Rptr.2d 125…………………………2
Powell v. City of Pittsfield,
143 F. Supp. 2d 94 (D. Mass. 2001)………………………………………………26
Randle v. Birmingham Railway Light Power Co.,
169 Ala. 314, 53 So. 918, 921……………………………………………………..40
Satti v. Kozek,
58 Conn. App. 768, 771, 755 A.2d 333,
cert. denied, 254 Conn. 928, 761 A.2d 755 (2000)…………………………………7
Selvaggi v. Miron,
60 Conn. App. 600, 601, 760 A.2d 539 (2000)……………………………………..7
South Windsor v. South Windsor Police Union Local
1480, 57 Conn. App.
490, 500, 750 A.2d 465 (2000), rev'd on other grounds,
255 Conn. 800, 770 A.2d 14 (2001)………………………………………………..7
State v. Shirley.
6 S.W.3d 243 (Tenn. 1999)……………………………………………………….11

OTHER
 Rest.3d, Law Governing Lawyers, § 98,
coms. a-c, pp. 58-59.)…………………………………………………………….32

iii.
(American Heritage Dict. (new college ed. 1980)
p. 128, col. 2.)…………………………………………………………………….14
(citing Restatement (Second) of Judgments
§ 27 cmt. e (1980))………………………………………………………………..21
1 Mallen & Smith, Legal Malpractice
(5th ed.2000) § 6.7, p. 564, fn. 1)………………………………………………...32
Cong. Globe, 42d Cong., 1st Sess. H. 477 (1871);
id. at H. 485 (Rep. Cook)………………………………………………………...24
Cong. Globe, 42d Cong., 1st Sess. S. 568 (1871)
(Senator Edmunds)………………………………………………………………26
Justice Sandra L. Lynch, James Madison Lecture,
Oct. 18, 2016, NYU School of Law……………………………………………….3
Note, State Action: Theories for Applying
Constitutional Restrictions to Private Activity,
74 Colum. L. Rev. 656 (1974)…………………………………………………….32

FEDERAL LAWS
18 U.S.C. §
2(a)……………………………………………………………………………….40
18 U.S.C. § 3……………………………………………………………………..41
18 U.S.C. § 371…………………………………………………………………..40
18 U.S.C § 1001………………………………………………………………….40
18 U.S.C § 1503………………………………………………………………….41
18 U.S.C. §§ 3401-3402…………………………………………………………..12
28 U.S.C § 454…………………………………………………………………...40
28 U.S.C. § 455(a)………………………………………………………………..16
28 U.S.C. § 455(b)………………………………………………………………..16
28 U.S.C. § 455(b)(4)……………………………………………………………..13
28 U.S.C. § 631(b)………………………………………………………………..12
28 U.S.C. § 631(i)………………………………………………………………...12
28 U.S.C. § 1291…………………………………………………………………..4
28 U.S.C. § 1331…………………………………………………………………...4
28 U.S.C. § 1343(a)………………………………………………………………...4
28 U.S.C. §§ 631-639……………………………………………………………..12
42 U.S.C. § 1988, PAGE 4

iii.
42 U.S. Code § 1985(2)(Clause i)………………………………………….23, 25, 45
42 U.S. Code § 1985(3)(Clause iii)………………………………………...23, 25, 45

US CONSTITUTION
Article III § 2…………………………………………………………………..4, 41
AMEND V………………………………………………………………….....9, 16
AMEND XIV……………………………………………………………………..9

OTHER
Fed.R.Civ.P. 12(b)(6)…………………..…………………………………………6
Cannon 3(B)…………………………………………………………………….16
Privacy Act of 1974………………………………………………………………41
N.H. R. Prof. Conduct 5.5(c)(2) & cmt. 5………………………………………...19
D.N.H.LR 83.5, DR-1…………………………………………………………...19

iii.
 iv. QUESTIONS FOR THE COURT

VI. RECUSAL

A. DID JUDGE MCCAFFERTY ERR IN DENYING RECUSAL THROUGH

THE USE OF SWAN V. BARBADORO, 520 F.3d 24, 26 (1st Cir. 2008) AS THE
COMPLAINT IS NOT FRIVOLOUS?

B. DID JUDGE MCCAFFERTY ERR AS A MATTER OF LAW IN DENYING

RESUSAL BASED UPON THE STATUTORY PROVISIONS IN 28 U.S.C. §
455(a) and 28 U.S.C. § 455(b)?

C. DID JUDGE MCCAFFERTY ERR AS A MATTER OF FACT IN

DENYING RECUSAL BASED UPON MATERIALY FALSE FACTS NOT IN
THE RECORD?

D. IS JUDGE MCCAFFERTY OBJECTIVELY BIAS IN THE APPELLANTS

CASE BECAUSE SHE RECENTLY VOTED TO RE-APPOINT
JOHNSTONE FOR GOOD BEHAVIOR OR BECAUSE SHE HAS
INTEREST IN THE OUTCOME?

E. DID JUDGE MCCAFFERTY ERR AS A MATTER OF FACT IN

DENYING RECUSAL BY BASING ITS DECISION ON FACTS NOT IN
THE RECORD?
F. IS JUDGE MCCAFFERTY'S ORDER IN ERR AS A MATTER OF LAW
OR FACT BECAUSE SHE IS OBJECTIVELY BIAS?
VII. COLLATERAL ESTOPPEL

A. DID THE TRIAL COURT ERR AS A MATTER OF LAW AND FACT

THAT APPELLANT’S SUIT IS AN IMPROPER COLLATERAL ATTACK
ON RULINGS OF ANOTHER COURT AND THEREFORE LACKS
JURISDICTION TO HEAR IT.

B. DID THE TRIAL COURT ERR AS A MATTER OF LAW WHEN THE

FOUR ELEMENTS OF COLLATERAL ESTOPPPEL UNDER GRELLA
HAVE NOT BEEN MET?

C. DID THE TRIAL COURT ERR AS A MATTER OF FACT IN

DISMISSING APPELLANT'S CASE FOR AN IMPROPER COLLATERAL

iv.
ATTACK BASED UPON MATERIALY FALSE FACTS NOT IN THE
RECORD?
VIII. CLASS-BASED ANIMUS

A. DID THE COURT ERR AS A MATTER OF LAW OR FACT IN

HOLDING THAT APPELLANT HAS NO CAUSE OF ACTION UNDER
SECTION 1985(2)(Clause i) and 1985(3) (clause iii), BECAUSE HE DID
NOT ALLEGE ACTS WITH A CLASS-BASED, INVIDIOUSLY
DISCRIMINATORY ANIMUS.

IX. CONSPIRACY UNDER 42 U.S. CODE § 1985(2)(Clause i)

A. DID THE COURT ERR AS A MATTER OF LAW OR FACT IN

HOLDING THAT APPELLANT DID NOT PROPERLY ALLEGED A
CONSPIRACY UNDER 42 U.S. Code § 1985(2)(Clause i) AND A CAUSE
FOR REMEDY UNDER 42 U.S.C. 1985(3) (clause iii)

X. APPELLANT'S 42 U.S.C. § 1986 CLAIMS

V. DID THE COURT ERR AS A MATTER OF LAW OR FACT IN

HOLDING THAT APPELLANT HAS NO CAUSE OF ACTION UNDER
SECTION 1986 BECAUSE CLAIM ONE FAILED TO ALLEGE ACTS
WITH A CLASS-BASED, INVIDIOUSLY DISCRIMINATORY ANIMUS
UNDER 1985.

XI. APPELLANT'S BIVENS CLAIMS

A. DID THE COURT ERR AS A MATTER OF LAW OR FACT IN
HOLDING THAT APPELLANT DID NOT PROPERLY ALLEGED A
CAUSE OF ACTION FOR ALL DEFENDANTS UNDER BIVENS.

XII. CLAIMS OF JUDICIAL IMMUNITY

A. DID THE COURT ERR AS A MATTER OF LAW OR FACT IN
HOLDING THAT THAT JUDICIAL IMMUNITY PROVIDES
COMPLETE IMMUNITY TO JOHNSTONE AND MCAULIFFE FROM
THIS SUIT.

iv.
B. DID THE COURT ERR AS A MATTER OF LAW OR FACT IN
HOLDING THAT THAT DERIVATIVE IMMUNITY PROVIDES
COMPLETE IMMUNITY TO SCHWARTZ AND ECK FROM THIS SUIT.

iv.
I. INTRODUCTION

1. The Appellant’s two cases are intertwined with the fraud perpetrated upon the

District Court. The first, [1] seeks to hold Twitter accountable for its discrimination

and constitutional violations against the Appellant, [TD. 1], and for the fraud upon

the Court perpetrated by Twitter. [TD. 74]. The second, here [2], within the claims of

[D. 1] seeks to hold the other defendants accountable for conspiring to deter and

retaliated against the Appellant from his case in the District Court, retaliate for

continuing claims, and for violating Appellant’s constitutional rights under the color

of law. In both these cases, Defendants have made a plethora of misrepresentations

or used other ways to cheat the Government and Appellant through the Court's

machinery and interfered with or obstructed one of its lawful governmental functions

by deceit, craft or trickery, or at least by means that are dishonest.[3]

_______________
[1] US District Court for the District of New Hampshire, No. 1:20-cv-00536-
SM.(hereinafter "Twitter Court" and "Twitter Docket" (TD. ""], "CASE" On Appeal
from the U.S. District Court for the District of New Hampshire, No. 20-1933
(Consolidated) Appeal No. 4, ALL the Courts Orders for lack of subject matter
jurisdiction; Appeal No. 5, the 03/19/2021 “[Rule 60 Order]”, 07/8/2020 “[Default
Order]” and the 08/13/2020 [Motion for Reconsideration, “MFR” Order], and
Continued… Order]” collective remaining Orders for fraud upon the Court and void
judgments, Appeal No. 2, the 09/21/2020 “[Compulsion and 09/28/2020 “[Stayed
Order]” for stripped jurisdiction, and lastly; Appeal No. 1, the 07/08/2021 “[Anon
Order]” and 09/14/2020 “[Permission Order]” in misapplying the Megless test.
[2] US District Court for the District of New Hampshire, Case #: 1:21-cv-01047-LM.
(hereinafter Docket referred to as [D. ""]). Appellant incorporates here within, any
and all arguments set forth in his [D. 15] motion to the Court and the attached [D. 15-
1 MOL, pp. 10-15] and attached [D. 15-3, Declaration]
[3] See Hammerschmidt v. United States, 265 U.S. at 265 U. S. 188.

Page 1 of 50
2. Appellant did not make up the prima facie proof of the Court’s bias in favor of,

and the many privileges given to Twitter and Perkins Coie Attorney’s, [4] and pleads

to this Appeals Court that it be diligent fact-finders and decide both these cases as the

law requires and not just because the judges in the District Court say so. If this

Appeals Court is to be successful, it will have to kill the conspiracy and not jump on

JOHNSTONE’S Conspiracy Choo-Choo train, [5] which is quite full, and whose

‘predominant purpose’ was/is to obscure her illegal policy, and deter, retaliate and

punish the Appellant for exercising his federal rights in exposing this illegal policy.

3. The code of judicial conduct requires a judge to "respect and comply with the

law,” to "be faithful to the law and maintain professional competence in it, and to

"accord to every person who has a legal interest in a proceeding, or that person's

lawyer, the right to be heard according to law." Judge McCafferty’s acts of inserting

created facts [6] to support a legal opinion designed to achieve an outcome, does not

appear to uphold these principles. [7] Judge McCafferty offers materially false

____________________________
[4] Pro-hac vice privileges were given to Twitter and Perkins "COIE' by the Court on
66 occasions. When Appellant’ filed his Complaint at [TD. 1], against Twitter, this
"Twitter Court" was in fact bias in favor of Twitter and Perkins Coie Attorneys. No
party or Court to date has denied these facts. Sure they have attempted to throw mud
at it, but have never hit the issue straight on. See unanswered [TD. 74], [D. 13, 16, 17].
[5] See United States v. Belanger, 890 F.3d 13, 21 (1st Cir. 2018).
[6] See [D. 15.3] 1100 Club Falsehoods and Half-Truths.
[7] Coptalk is an unofficial term for the way that police officers and pro-police media
will often spin events, and unjust activity and restate events to make the involved
police officers seem innocent, to make themselves look better or, at worst, as victims,
even if they're the criminals in a case.

Page 2 of 50
statements and factual conclusions not supported by anything in the record, [8]

thereby warping the narrative and creating false narratives which are capable of

influencing review by an Appeals Court which impedes discussion on the actual facts

and merits of the case. Even just one sworn statement has the power to tip the scales

of justice. [9]

4. The Order [D. 13] and Judgment [D. 14] bring with them weak Collateral

Estoppel, Class-Based invidiously discriminatory animus, frivolous and Judicial

Immunity arguments, all issued by an objectively biased Judge McCafferty.[10]

5. The Order's strongest argument, judicial immunity, contends that

JOHNSTONE and MCAULIFFE are absolutely immune from all claims as all the

acts were "judicial acts". Appellant contends that, because JOHNSTONE acted

nonjudicially and that JOHNSTONE and MCAULIFFE both acted in the clear

absence of personal and subject matter jurisdiction, both have lost any judicial

immunity. The Appellant also asserts that ECK and SCHWARTZ are not insulated

from § 1985. § 1986 or Bivens liability by derivative immunity.

________________
[8] “Truth matters, it matters enormously. It is the obligation of lawyers to tell the
truth and to be accurate. It is also the obligation of judges to be honest and accurate.”
Justice Sandra L. Lynch, James Madison Lecture, Oct. 18, 2016, NYU School of Law.
[9] “A judge’s loyalty is to the rule of law.”; “If the public comes to see judges as
merely ‘politicians in robes, its confidence in the courts, and in the rule of law itself,
can only decline.” Justice Breyer.
[10] See in General Appellant's [D. 9] Motion to Recuse, [D.15] Motion to
Reconsider, [D.15.1] MOL and his [D. 15-2] Declaration. (McCafferty objectively bias
in favor of JOHNSTONE because she just voted to re-appoint based on past "good"
behavior).
Page 3 of 50
II. JURISDICTION

6. The District Court had jurisdiction as a substantial part of this action arose

under the laws of the United States, 28 U.S.C. §§ 1331, 1343(a) and 42 U.S.C. § 1988,

and through Article III § 2 which extends the jurisdiction to cases arising under the

U.S. Constitution. Since the district court's order [D. 13], and judgment [D. 14]

dismisses all of the underlying claims fully and disposed of the Appellants' claims, this

court of appeals has jurisdiction under 28 U.S.C. § 1291.

III. TWITTER COURT BACKGROUND

7. Without Appellant’s knowledge, JOHNSTONE, wrote, managed, administered

pro hac vice policies which allowed Twitter and its counsel, MRAZIK, privileges of

appearing before the Court for a period of over 2 years, and covering 66 submissions,

although he lacked the requirements of eligibility.

8. When Appellant’s case came to bar against TWITTER, SCHWARTZ

attempted to utilize JOHNSTONES’ ILLEGAL POLICY and was called out by the

Appellant, alleging default due to the nullity of her submittals, and because it was

illegal under New Hampshire law, and therefore void. So when Appellant’s case came

to bar, the Court was already unconstitutional and bias in favor of Twitter and its

attorneys.

9. When Appellant’s Default Motion came to bar, the Court was not only bias or

predispositioned in favor of Twitter, but it was compromised. If JOHNSTONE and

MCAULIFFE followed the law and official rules, Twitter would have defaulted. If
Page 4 of 50
Twitter defaulted, Twitter need only to point out the 66 times that the Court allowed

them to submit illegal filings under JOHNSTONE’S ILLEGAL POLICY and the

Court’s bias in favor of Twitter would have been discovered by many.

10. It is alleged in the current [D. 1] Complaint that the four conspirators

conspired to conceal the ILLEGAL POLICY and to retaliated and deter Appellant in

an effort to cover JOHNSTONE’S acts and the bias of the Court in favor of Twitter.

If the four defendants utilized her ILLEGAL POLICY, and their own tools of their

trades, they could conceal the ILLEGAL POLICY and bias of the Court, deter and

retaliate against the Appellant, dismiss his default motion and Complaint using the

Court's machinery and send him packing. The defendant Attorneys would make

misrepresentations of fact and law, and MCAULIFFE would dismiss it, often without

any reasoning or without an arguable basis in law, to which succeeded.

IV. PROCEDURAL BACKGROUND IN THIS CASE

11. Appellant filed his [D. 1] Complaint. ECK and SCHWARTZ returned waivers

and appeared while JOHNSTONE and MCAULIFFE fled and hid out in the

Courthouse. Appellant motioned to Recuse Judge McCafferty, [D. 9], and motioned

for Alternative Service upon JOHNSTONE and MCAULIFFE, [D. 11]. Both of

which went unanswered by all defendants. At Order [D. 13], the Court denied [D. 9]

as frivolous and [D. 11] as moot, and dismissed the Complaint with prejudice and

entered final judgment [D. 14]. Appellant countered with a Motion to Reconsider, [D.

15], which ECK and SCHWARTZ objected to through, [D. 16] and [D. 17],
Page 5 of 50
respectively. Appellant Motioned to Permit a Reply Declaration, [D. 18], and Replied

[D. 22], and motioned to Strike [D. 21] Eck’s objection and Replied [D. 24] and

motioned to Strike [D. 19] SCHWARTZ’S objection, with both Strike Motions going

unanswered. On March 23, 2022, through Order [D. 25], the Court granted in part

and denying in part [D. 18], and denied Appellant’s strike and reconsideration

motions. Appellant then moved for Clarification [D. 26], in which ECK made an

objection at [D. 27]. Appellant replied [D. 29], to ECK’S objection to clarification, the

Court denied clarification on April 15, and the Appellant filed Notice of Appeal on

April 21, 2022, [D. 30]. The Court acknowledged the Noticed, [D. 31], and amended

that notice through [D. 32].

V. LEGAL STANDARDS OF REVIEW

12. This Appeals Court affords de novo review to orders for sua sponte dismissal.

Cf. Beddall v. State St. Bank Trust Co., 137 F.3d 12, 16 (1st Cir. 1998) ("We will affirm

the dismissal of the complaint if, and only if, accepting all well-pleaded facts as true

and drawing all reasonable inferences in favor of the plaintiff, the complaint "fail[s] to

state a claim upon which relief can be granted.") See Fed.R.Civ.P. 12(b)(6). That is,

the complaint is properly dismissed only when the allegations are such that "the

plaintiff can prove no set of facts to support [the] claim for relief." Rockwell v. Cape Cod

Hosp., 26 F.3d 254, 260 (1st Cir. 1994).

13. Summary judgment rulings are reviewed de novo. Nieves-Vega v. Ortiz-Quinones,

Page 6 of 50
443 F.3d 134, 136 (1st Cir. 2006). See Bis-bano v. Strine Printing Co., 737 F.3d 104, 107

(1st Cir.2013). De novo review occurs when a court decides an issue without

deference to a previous court's decision. Trial de novo occurs when a court decides all

issues in a case, as if the case was being heard for the first time. "The issue of whether

the court held the parties to the proper standard of proof is a question of law. When

issues in [an] appeal concern a question of law, this court reviews such claims de

novo. [11]

14. Qualified immunity is a question of law, Tatro v. Kervin 41 F.3d 9 (1st Cir. 1994).

Erroneous legal standard when ruling on the motion, presents a pure question of law

and, thus, engenders de novo review. United States v. Gates, 709 F.3d 58, 69 (1st

Cir.2013).

15. Courts must move cautiously when dismissing a complaint sua sponte. See, e.g.,

Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995). Although it is occasionally appropriate

for a district court to "note the inadequacy of the complaint and, on its own initiative,

dismiss the complaint[,] a court may not do so without at least giving plaintiffs notice

of the proposed action and affording them an opportunity to address the issue." Wyatt

v. City of Boston, 35 F.3d 13, 14-15 (1st Cir. 1994) (quoting Literature, Inc. v. Quinn, 482

________________
[11] See Selvaggi v. Miron, 60 Conn. App. 600, 601, 760 A.2d 539 (2000); Satti v. Kozek,
58 Conn. App. 768, 771, 755 A.2d 333, cert. denied, 254 Conn. 928, 761 A.2d 755
(2000); see also South Windsor v. South Windsor Police Union Local 1480, 57 Conn. App.
490, 500, 750 A.2d 465 (2000), rev'd on other grounds, 255 Conn. 800, 770 A.2d 14
(2001). Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 139 (Conn. App.
Ct. 2002).
Page 7 of 50
F.2d 372, 374 (1st Cir. 1973)). See also Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988)

(noting that "the general rule is that a `district court has no authority to dismiss a

complaint for failure to state a claim upon which relief can be granted without giving

the plaintiff an opportunity to be heard'"). Clorox Co. Puerto Rico v. Proctor Gamble, 228

F.3d 24, 30 (1st Cir. 2000). The law required the district court, before essaying a sua

sponte dismissal, to assume the truth of Appellant's fact-specific averments.

16. This Appeals Court reviews the denial of a Rule 59(e) motion for an abuse of

discretion. Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238-

39 (11th Cir. 1985). A Rule 59(e) motion may not be used "to relitigate old matters,

raise argument or present evidence that could have been raised prior to the entry of

judgment." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). Rather, "[t]he only

grounds for granting [a Rule 59(e)] motion are newly-discovered evidence or manifest

errors of law or fact." Id. (internal quotation marks omitted). A manifest error is one

that amounts to a "wholesale disregard, misapplication, or failure to recognize

controlling precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000); see

also Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) (defining

manifest error as an error "that is plain and indisputable, and that amounts to a

complete disregard of the controlling law").

VI. RECUSAL

A. Background

Page 8 of 50
17. Appellant motioned, [D. 9] under 28 U.S.C. § 455(a) and (b), stating that Justice

McCafferty’s “impartiality might reasonably be questioned,” given her role as chief

administrator of the District Court. Likewise, the Due Process Clause of U.S.

CONST. AMEND XIV, requires recusal as she is a fact witness to the ILLEGAL

POLICY, and creates an intolerable risk to Due Process under the U.S. CONST.

AMEND V of an unbiased tribunal, [D. 9, ¶ 1], as she was and is the chief

administrator of the Court while JOHNSTONE’S ILLEGAL POLICY was utilized,

was noticed of the ILLEGAL POLICY, [D. 9-1, ¶ 2], and within her duties, [Id. ¶ 2],

has personal knowledge of the Appellant's CASE, [D. 9, ¶ 3], and is a fact witness to

the ILLEGAL POLICY, whether she took administrative action in the matter or not.

[Id. ¶ 1].

18. Judge McCafferty denied Appellant’s [Doc. 9] through Order [D. 13] in which

she refused to recuse herself because she determined (1) that the lawsuit was patently

frivolous, [D. 13, p. 7].[12] (2) that the Court lacks jurisdiction over the case, [Id. p. 7],

and (3) that JOHNSTONE and MCAULIFFE are entitled to judicial immunity. [Id.

p. 7], and then based the Order on material facts not in record, in stating that

“because [she] was the chief judge of the court while Case No. 20-536 was ongoing

and because the suit names two of my colleagues on this court as defendants, my

impartiality might reasonably be questioned.” [Id. p. 7], which was not within the

_____________________
[12] Citing Swan v. Barbadoro, 520 F.3d 24, 26 (1st Cir. 2008) as holding that recusal is
unnecessary where the underlying litigation is frivolous.
Page 9 of 50
Appellant’s [D. 9] arguments or [D. 1] Complaint. "The reasons for finding no

jurisdiction and applying judicial immunity in this case are well established by

precedent," and "Accordingly, Verogna’s motion to recuse is denied." [D. 13, p. 7].

19. Appellant objected through [D. 14], submitting additional information

regarding Judge McCafferty’s role in re-appointing JOHNSTONE to another term as

Magistrate. Appellant argued that his [D. 1] Complaint was not frivolous, [D. 15, ¶ 3],

that the Court had jurisdiction, and that because Judge McCafferty, as an Article III

judge on the Court who just recently voted within a group of 5 other Article III

justices to re-appoint JOHNSTONE to another term as Magistrate Judge, and is

simultaneously the author of this Order, and the Appellant’s claims are opposite

regarding JOHNSTONES behavior surrounding her ILLEGAL POLICY, the Order

creates an actual bias and an unconstitutional tribunal, and violates Appellant’s due

process guarantees of “an absence of actual bias” on the part of a judge. [D. 15].

20. ECK replied at [D. 16], stating that “Judge Johnstone’s reappointment provides

no Rule 60 (or Rule 59) basis to vacate this court’s 1/27/22 order.” [D. 16, ¶ 15].

SCHWARTZ replied at [D. 17], stating the Court acted well within its discretion in

rejecting [Appellant's recusal request, [D. 17, p. 2], and well within its “range of

discretion” to deny Plaintiff’s recusal motion. In re United States, 666 F.2d 690, 695

(1st Cir. 1981), and then based the Order on material facts not in record, in stating

that “Chief Judge is beholden to a magistrate judge whom she supervises,” [D. 17, p.

Page 10 of 50
4], when Appellant’s argument was that the Chief Judge was beholden to her duties

and her Article III vote to re-appoint JOHNSTONE.

21. The Court then denied Appellant’s new information at [D. 25], stating “To the

extent [Appellant] brings new allegations in his filings or clarifies existing allegations,

they do not affect the court’s conclusions.” [D. 25, p. 1], and is denied for the reasons

stated in the court’s order dismissing the suit (D. 13), and for the additional reasons

stated in both Attorney Eck’s objection (D. 16) and Attorney Schwartz’s objection (D.

17). See [D. 25, p. 2].

B. Argument

22. Appellant’s claims are not frivolous, [D. 15, ¶ 3] and are partially based upon

JOHNSTONE’S previous bad behavior as Magistrate Judge. [D. 15, ¶ 4]

23. Appellant has due process rights which guarantees “an absence of actual bias”

on the part of a judge. In re Murchison, 349 U. S. 133, 136 (1955). (due process

requires, at a minimum an impartial tribunal.) Mullane v. Central Hanover Bank (1950).

[D. 15, ¶ 21], [D. 15.1, p. 2] . The Order is a clear error of judgment and Judge

McCafferty has applied the wrong legal standards and neglected the facts in record.

Arthur v. Thomas, 739 F.3d 611, 628 (11th Cir. 2014). (Incorrect legal standard or a

misapplication of the law to the relevant facts.) State v. Shirley 6 S.W.3d 243 (Tenn.

1999); LeBlanc v. B.G.T. Corp. 992 F.2d 394 (1st Cir. 1993); United States v. Rahm, 993

F.2d 1405, 1410 (9th Cir. 1993); United States v. Pelullo, 964 F.2d 193, 198 (3d Cir.

1992); Reed v. Baxter, 134 F.3d 351, 358 (6th Cir. 1998). (Acts in excess of judicial
Page 11 of 50
authority constitutes misconduct, particularly where a judge deliberately disregards the

requirements of fairness and due process.) Gonzalez v, Commission on Judicial Performance,

(1983) 33 Cal. 3d 359, 371, 374. [D. 15.1, p. 2]. “Whatever disagreement there may be

in our jurisprudence as to the scope of the phrase ‘due process of law,’ there is no

dispute that it minimally contemplates the opportunity to be fully and fairly heard

before an impartial decisionmaker.” Catchpole v. Brannon (1995) 36 Cal.App.4th 237,

245.

24. Judge McCafferty; was noticed of JOHNSTONE’S ILLEGAL POLICY. [D. 9-

1, ¶ 2], had a duty to investigate as she was in charge of the Court, [D. 9-1, ¶ 3], in

which reasonable minds would believe that Judge McCafferty diligently discharged her

administrative responsibilities and supervisory authority [Id. ¶ 5], and has made a

reasonable inquiry into JOHNSTONE’S ILLEGAL POLICY [Id. ¶ 4], and has

participated in some type of administrative act with regards to the ILLEGAL

POLICY. [Id. ¶ 6].

25. Within close proximity (approx. 1 month) of Appellant filing his claims, Judge

McCafferty, within her Article III duties, [13] voted to re-appoint JOHNSTONE

based partially upon her past behavior as Magistrate Judge. Judge McCafferty has

___________________
[13] See Federal Magistrates Act, codified at 28 U.S.C. §§ 631-639 and 18 U.S.C. §§
3401-3402, and the Regulations of the Judicial Conference of the United States
Establishing Standards and Procedures for the Appointment and Reappointment of
U.S. Magistrate Judges. Standards and procedures promulgated by the Judicial
Conference of the United States. 28 U.S.C. § 631(b).) Good moral character and
committed to equal justice under the law. 28 U.S.C. § 631(i).
Page 12 of 50
consciously or unconsciously avoided the appearance of having erred or changed her

position, which obviously carries far more weight with the judge than the Appellant’s

arguments. Murchison, supra, at 138; [6] Williams v. Pennsylvania, 579 U.S. ___ (2016). In

addition, Judge McCafferty’s “own personal knowledge and impression” of Case No.

20-536, acquired through her role as the chief administrator, she has an interest in the

outcome as JOHNSTONE’S ILLEGAL POLICY was administered under her

supervision. Id. ¶ 136. [D. 15, ¶ 19]; (Predisposition to [Appellant's] claims.) Franklin

v. McCaughtry, 398 F.3d 955 (7th Cir. 2005). [D. 15.1 MOL, p. 2].

26. Section 455(a) provides that "[a]ny justice, judge, or magistrate judge of the

United States shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned." 28 U.S.C. § 455(b)(4). McLarnon v. Deutsche Bank Nat'l Trust

Co., Civil Action No. 13-12815-FDS, 4 (D. Mass. Apr. 10, 2014). This “most basic

tenet of our judicial system helps to ensure both the litigants’ and the public’s

confidence that each case has been adjudicated by a neutral and detached arbiter.”

Hurles v. Ryan, 752 F.3d 768, 788. (9th Cir. 2014). Although fairness “requires an

absence of actual bias in the trial of cases,” it is “endeavored to prevent even the

probability of unfairness.” (Murchison, supra, 349 U.S. at p. 136; see also Greenway v.

Schriro (9th Cir.) 2011) 653 F.3d 790, 806 [“[a] showing of judicial bias requires facts

sufficient to create actual impropriety or an appearance of impropriety”].)

27. The inquiry into judicial bias is an objective one that does not require proof of

actual bias. “[D]ue to the sensitivity of the question and inherent difficulties of proof
Page 13 of 50
as well as the importance of public confidence in the judicial system,” it is not

required that actual bias be proved. Catchpole, at 237, 245.) “A judge’s impartiality is

evaluated by an objective, rather than subjective, standard.” Hall v. Harker (1999) 69

Cal.App.4th 836, 841, disapproved on another ground in Casa Herrera, Inc. v. Beydoun

(2004) 32 Cal.4th 336.) Establishing a due process violation requires a “heightened

showing of a probability, rather than the mere appearance, of actual bias to prevail.”

(Freeman, supra, 47 Cal.4th at p. 1006); [a “probability of actual bias on the part of the

judge or decisionmaker [that] is too high to be constitutionally tolerable”].) Such a

case requires “extreme facts,” because “[l]ess extreme cases—including those that

involve the mere appearance, but not the probability, of bias—should be resolved

under more expansive disqualification statutes and codes of judicial conduct.”

(Freeman, supra)

28. “Bias” is defined as “a preference or inclination that inhibits impartial

judgment; prejudice.” (American Heritage Dict. (new college ed. 1980) p. 128, col. 2.)

Google’s definition: “prejudice in favor of or against one thing, person, or group

compared with another, usually in a way considered to be unfair.”1

29. Reasonable minds, with knowledge of all the relevant circumstances disclosed

by a reasonable inquiry, would indicate that Justice McCafferty has made some type of

administrative inquiry, has personal knowledge, and has been influenced by matters

outside the Appellant’s [D. 1] Complaint. Moreover, these “Policies” are in essence

her policies as she is and was the Chief Judge when JOHNSTONE’S ILLEGAL
Page 14 of 50
POLICY was in effect, and thus she has a bone in this fight, and may well be held

accountable if it is found she was negligent in her duties. At a minimum, even if

Justice McCafferty did nothing at all, she, through her own non-actions, would

thereby be attributed to a predisposition of the Appellant’s claims, and would still be a

fact witness to MCAULIFFE’S, JOHNSTONE’S and the other justices activities

within their respective cases, and thus having direct knowledge relevant to the issues

in this case through her personal knowledge. [D. 9, p. 2].

30. Given the facts and circumstances known to Judge McCafferty at this time,

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), a reasonable person

could come to the conclusion that Judge McCafferty, or any other judge in this

District, [MOL, at 9.1, ¶¶ 10, 11, and 12], would be unreasonably biased against the

Appellant because of his disapproval of Judge McCafferty’s own system or out of her

own self-preservation, and for the reasons stated above. See [MOL, 9.1, ¶ 33].

31. Judge McCafferty totally disregarded her Administrative Article III position

within the Court in not recusing herself from Appellant's CASE, introduces material

false pretenses or objections, paints the case as frivolous and dismisses it outright,

when she knows that the Court, herself included, with evidence of JOHNSTONE’S

ILLEGAL POLICIES in hand, just recently voted to re-appoint JOHNSTONE for

good behavior to another term, partly based on her past performance and merit.

(Cannon 3(B)(3)). With this vote for re-appointment, Judge McCafferty, has already

decided Appellant’s case, which in turn makes her objectively bias, a material witness
Page 15 of 50
under her Cannon 3(B) administrative responsibilities and makes her order

unconstitutional. [D. 15, ¶ 4]. Williams v. Pennsylvania, 579 U.S. ___ (2016). (Personal

knowledge acquired through her role as the chief administrator, has an interest in the

outcome. Id., at 136.) [D. 15.1 MOL, pge. 2].

32. The circumstances of this case lead any reasonable observer to believe that

Judge McCafferty has a personal interest in the outcome, and that her continued

presence in the case undermines the confidence in the impartiality of the federal

judicial system and faith in the rule of law. U.S. CONST. AMEND V compels and the

statutory bases of 28 U.S.C. § 455(a) and 28 U.S.C. § 455(b) require that Judge

McCafferty should have recused herself from any further proceedings. See [MOL, D.

9.1, ¶ 28].

VII. COLLATERAL ESTOPPEL

A. Dismissal Order at D. 13.

33. The [D. 13] Dismissal Order states [Appellant’s] claims, “stem from a separate

case, Verogna v. Twitter, 20-536-SM.” [Id. p. 3], and is an improper collateral attack on

rulings made in another lawsuit and that the court lacks; subject-matter jurisdiction to

hear [Appellant’s] dispute. [Id. pp. 6 and 9]; jurisdiction to review decisions made by

other district courts; cf. Rooker v. Fid. Tr. Co., 263 U.S. 413, 416 (1923) [Id. p. 8], and;

authority to hear an appeal of the rulings made by another federal judge. Celotex Corp.

v. Edwards, 514 U.S. 300, 313 (1995) [Id. p. 8], and that; disagreements with rulings in a

suit are matters for appeal, not collateral litigation. See, e.g., Forrester v. White, 484 U.S.
Page 16 of 50
219, 227 (1988) [Id. p. 8]; “party seeks to circumvent an earlier ruling of one court by

filing a subsequent action in another court.” Pratt v. Ventas, Inc., 365 F.3d 514, 519

(6th Cir. 2004). [Id. p. 8]

34. The Order also makes numerous misstatements or misrepresentations of the

Appellant’s [D. 1] Complaint in stating that; “The core factual premise of Verogna’s

suit is his allegation that the rulings made by Judges McAuliffe and Johnstone in Case

No. 20-536 were incorrect. [D. 13, p. 7]; are premised on disagreements with legal

rulings by other judges of this court, [Id. p. 6]; [Appellant] takes issue with findings by

Judge McAuliffe or Judge Johnstone on motions by Attorney Eck or Attorney

Schwartz to appear in defense of the lawsuit Verogna filed against Twitter. [Doc. 13,

p. 6], and that Appellant; appears to take issue with various other rulings on motions

filed by either himself or by Twitter in Case No. 20-536. [D. 13, p. 6]. See Also [D. 15-

3, Attached Declaration, The 1100 Club].

35. The Appellant rebutted at [D. 15] that the four elements of collateral estoppel

under Grella have not been met, [14] and the issue(s) sought to be precluded through

the Order, [15] are different from those involved in the prior action, [16] the issues

_____________________________________
[14] Grella v. Salem Five Cent Savs. Bank, at 30, 42 F.3d 26 (1st Cir. 1994), (citing NLRB
v. Donna-Lee Sportswear Co., Inc., 836 F.2d 31, 34 (1st Cir. 1987); In re Sestito, 136 B.R.
602, 604 (Bankr. D. Mass. 1992); In re Dubian, 77 B.R. 332, 337 (Bankr. D. Mass.
1987). See [D. 15-1, ¶ II].
[15] The Order [D. 13] incorrectly states that the core factual premise of the suit is

Page 17 of 50
here have never explicitly been litigated or decided, are not identical, an even if they

were, they were non-fulfilling to the finality requirement, as the case is still open, [17]

and not final, [D. 15, ¶¶ 4, 19], [18], and that the Court erred in utilizing a false core

factual premise that Appellant brought this action because he disagrees with previous

orders in Case No. 20-536, and erred in law and fact by mis-applying the facts on

record to the correct legal standard by applying collateral estoppel in a still open case

and then dismissing the action for want of jurisdiction on that basis. [D. 15, ¶ 21].

B. Reconsideration Order at D. 25.

36. Other arguments made by Defendants in response to [D. 15], and after the [D.

13] Order, are that the Appellant, 1) “in the instant Complaint, improperly seeks to

attack rulings made in the Underlying Matter, [D. 16, ¶ 7]; 2) Appellant “assigns

wrongdoing to the rulings based upon the Court having accepted pleadings, signed

_____________________
Continued “that the rulings made by Judges McAuliffe and Johnstone in Case No. 20-
536 were incorrect.”. See Also [D. 15-3, Attached Declaration, The 1100 Club].
[16] Compare the issues here of violating Plaintiff’s statutory right to access to a
federal court Section 1985(2)(i), neglect to prevent a 1985(2)(i) violation, and
violations under the U.S. Constitution by federal officers versus his original claims in
Case No. 20-536, which are discrimination in contract, discrimination in public
accommodation, and first amendment rights to free speech and rights to assembly.
[17] Plaintiff’s original Case No. 20-536 is currently on Appeal in the United States
Court of Appeals for The First Circuit, Case Nos. 20-1933, 20-2005, 20-2091 and 21-
1317(consolidated). [Recusal Motion, at 9-1, ¶ 1]. [D. 15, ¶ 19].
[18] “Plaintiff maintains an active lawsuit against Twitter, and none of his claims have
been dismissed from that lawsuit. That litigation is merely stayed pending appellate
resolution of an ancillary issue: whether Plaintiff may proceed anonymously.”
SCHWARTZ [D. 17, pge. 4]; “The Underlying Matter has not gone to final judgment,
but rather is stayed pending appeal. (Ex. 72 to Doc. #1).” ECK [D. 16, ¶ 11].

Page 18 of 50
and filed by an attorney admitted to practice before the Court, because the pleadings

also indicated that Attorney Schwartz would be seeking admission Pro Hac Vice.” [D.

16, ¶ 11], and that; 3) Appellant’s “objections to Schwartz’s representation of Twitter

were repeatedly rejected in that litigation, and properly so. See N.H. R. Prof. Conduct

5.5(c)(2) & cmt. 5 (a lawyer admitted in another U.S. jurisdiction may provide legal

services in New Hampshire on a temporary basis if those services are reasonably

related to a proceeding before a tribunal and the lawyer reasonably expects to be

authorized to appear in that proceeding); D.N.H.LR 83.5, DR-1 (adopting the N.H.

Rules of Professional Conduct).” SCHWARTZ [D. 17, p. 3].

C. Argument

37. Even if the underlying factual questions were the same, which they are not, the

earlier case required clear and convincing, and this case only requires proof by a

preponderance of evidence and therefore rendering collateral estoppel inapplicable in

this case. See [D. 15, ¶ 21]; (differing standards of proof barred application of

collateral estoppel.) In re Nathaniel P. (1989) 211 Cal. App. 3d 660, 670 [259 Cal. Rptr.

555]; In re Sylvia R. (1997) 55 Cal. App. 4th 559, 563 [64 Cal. Rptr. 2d 93. See

Guardianship of Simpson v. Brown, 67 Cal. App. 4th 914, 79 Cal. Rptr. 2d 389, 401 (1998).

38. Pertinent Orders for the purpose of this Appeal in Case No. 20-536 were as

follows;

Page 19 of 50
39. Again, the Appellant states that the issue(s) sought to be precluded through the

[D. 13] Order, are different from those involved in the prior action, the issues here

have never explicitly been litigated or decided, and are not identical. First, 1) the

Twitter Court has never specifically addressed the issue of whether SCHWARTZ’S

Motion to Dismiss [TD. 3], was within the court’s rules, or whether it should be

stricken from the record; 2) It had the specific opportunity to address these two issues

through the Appellant’s Motion to Strike at [TD. 14], or through Appellant’s second

Motion to Default at [TD. 46], but neglected to do so; 3) Both of these motions were

Page 20 of 50
temporarily shelved without prejudice until the resolution by the Appeals Court, and

therefore have yet to be completely litigated. See TD. 3/8/2021 Order.

40. “Under res judicata principles, a prior judgment between the same parties, (here

the Defendants are not the same parties) can preclude subsequent litigation on those

matters actually and necessarily resolved in the first adjudication.” Orca Yachts, L.L.C.

v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002) (citing In re Varat Enters., Inc., 81

F.3d 1310, 1315 (4th Cir. 1996)). “The doctrine of res judicata encompasses two

concepts: 1) claim preclusion and 2) issue preclusion, or collateral estoppel.” Id.

(citing Varat, 81 F.3d at 1315 (citing Allen v. McCurry, 449 U.S. 90, 94 (1980))). “[I]ssue

preclusion . . . applies when the later litigation arises from a different cause of action

between the same parties.” Id. (citing Varat, 81 F.3d at 1315). “Issue preclusion

operates to bar subsequent litigation of those legal and factual issues common to both

actions that were `actually and necessarily determined by a court of competent

jurisdiction in the first litigation.'” Id. (citing Varat, 81 F.3d at 1315 (quoting Montana

v. United States, 440 U.S. 147, 153 (1979))). “Issues are not `actually litigated’ for

collateral estoppel purposes if they merely could have been litigated and determined in

the prior action, but actually were not. In re Schriver, 218 B.R. 797, 806 (E.D. Va. 1998)

(citing Restatement (Second) of Judgments § 27 cmt. e (1980)).

41. Here, the issue of whether Defendants conspired to deter Appellant in his legal

action in District Court or whether “Federal Officers” violated Appellant’s

Constitutional Rights or the legality of SCHWARTZ’S Default Motion [TD. 3], were
Page 21 of 50
not actually litigated in the Twitter Court. Even if, as Defendants argue, the Appellant

disagrees with how the Court reached its decisions, it does not follow that this

disagreement also waives any claim of Conspiracy or for violations of Bivens. Because

the parties are different and neither of these claims were litigated in the Twitter Court,

none of Appellant’s claims in this instant action should be barred by collateral

estoppel.

42. Lastly, because both the [TD. 7/8/20] and [TD. 8/13/20] Default Orders in

one word were “denied” and the [TD 8/13/20] Pro Hac Vice Order was “Granted”,

the reasons for these Orders is unknown. And if the allegations in the Complaint at

[D. 1] are to be taken as true, these Orders, right, wrong or indifferent, were all

contrived utilizing JOHNSTONE’S ILLEGAL POLICY, and the Appellant did not

discover JOHNSTONE’S ILLEGAL POLICY until after the Twitter Court

dismissed the action, and therefore could not have raised or litigated the instant claims

fully in the Twitter Court, if even appropriate.

43. It is established fact that the issues have not been fully litigated as an appeal is

still pending, yet the Order and defense Counsel, as though oblivious to the Federal

Circuit’s current appeal, have charged ahead with what has now become a frivolous

collateral estoppel argument, and the reliance upon the doctrine of res judicata and/or

collateral estoppel in disposing of the instant case was improper and of no legal force

or effect.” Erebia v. Chrysler Plastic Products Corp., 891 F.2d 1212 (6th Cir. 1989).

Page 22 of 50
VIII. CLASS-BASED ANIMUS

A. Dismissal Order at D. 13

44. The [D. 13] Dismissal Order states that; "There are no factual allegations from

which a plausible inference can be made of any defendant acting with a “class-based,

invidiously discriminatory animus.” [Id. 13, p. 14], and that the "alleged facts do not

support claims under § 1985(2) or (3) because they do not permit a plausible inference

that Attorneys Eck or Schwartz, in conjunction with Judges McAuliffe and Johnstone,

acted to deprive Verogna of civil rights with a “class-based, invidiously discriminatory

animus,” which is an element of a claim under both § 1985(2) and (3). Hahn v. Sargent,

523 F.2d 461, 469 (1st Cir. 1975); [Id. 13, p. 13].

B. Arguments

45. Appellant objected, inter alia, that (Clause One Does Not Require Allegations

of Class- or Race-Based Discriminatory Animus.) Kush v. Rutledge, 103 S. Ct. 1483, 61

WASH. U. L. Q. 849 (1983). *** ((1985(2) (clause ii) does not contain equal

protection language. Kush, 460 U.S. at 724-725. The absence of that language is not an

accident. As the Court explained in Kush, the sponsors inserted the equal protection

language into selected portions of the Civil Rights Act of 1871 (such as Section

1985(3) (clause i)) in order to address constitutional objections that the "enormous

sweep of the original language" improperly extended federal authority and displaced

state control over private conduct.) Kush, 460 U.S. at 726 (quoting Griffin, 403 U.S. at

Page 23 of 50
99-100); Cong. Globe, 42d Cong., 1st Sess. H. 477 (1871); id. at H. 485 (Rep. Cook);

Powell v. City of Pittsfield 143 F. Supp. 2d 94 (D. Mass. 2001). [D. 15-1, p. 4].

46. It is established fact that class-based animus is not a requirement of 1985(2)

(clause i), yet defense Counsel, as though oblivious to Kush and others, have charged

ahead with what has now become a frivolous class-based argument, [D. 17, p. 10] and

the reliance upon class-based invidiously discriminatory animus in disposing of the

instant case was improper and of no legal force or effect.” Erebia, 891 F.2d 1212.

Additionally, the Courts [D. 25] Order relies upon and for the additional reasons

stated in Attorney Schwartz’s objection (D. 17). [D. 25, p. 2]

IX. APPELLANT'S 42 U.S. Code § 1985(2)(Clause i) AND 42 U.S.C. 1985(3)

(Clause iii) CLAIMS

A. Dismissal Order at D. 13

47. The Court dismissed Appellants [D. 1] Complaint for lack of jurisdiction and,

alternatively, because it is "allegedly" frivolous, [D. 13, p. 1], mostly consists of

conclusory declarations, [Id. pp. 5, 13], failed to adequately allege a conspiracy. [Id. P.

14], lacks of “factual allegations from which a plausible inference of conspiracy can be

made[.]” [Id. pge 14], lacks an arguable basis under the law, [Id. pp. 3, 6], contain

defects that cannot be cured by amendment, [Id. p. 2].

48. The Order also makes numerous misstatements or misrepresentations of the

Appellant’s [D. 1] Complaint in stating, inter alia, that; "Verogna acknowledges in

Page 24 of 50
the complaint that he has no facts to support his theory", and elsewhere. See [D.

15. 3, 1100 Club, falsehoods and half-truths within the D. 13 Order].

B. Arguments

49. Appellant stated two grounds for relief under § 1985(2)(Clause i) and 1985(3)

(clause iii),: one for conspiracy by the four Defendants, to deter Appellant from

testifying in the upcoming CASE and trial and one for conspiracy to retaliate against

him for attending and proceeding in his [D. 1] Complaint. See [D. 1, Count I, ¶ ¶ 216-

256]. As § 1985 demands, he also alleged that he had been "injured in his person or

property" by the acts of respondents in violation of § 1985 and that he was entitled to

recover his damages occasioned by such injury against respondents jointly and

severally.

50. Appellant refers jurists to the following in support of Appellant's claims; [D. 1,

III, A PRIVATE CONSPIRACY AGREEMENT, ¶ ¶ 106-128]; [D. 1, Count I, ¶ ¶

216-256]; [D. 1, ¶ ¶ 1-306]; [D. 15., Word Trivia, pge 3, ¶ 3 ]; [D. 15, ¶ ¶ 27-35]; [D.

15.1, pges 4-7]; Verified complaint treated as affidavit. Sheinkopf v. Stone, 927 F.2d

1259, 1262 (1st Cir. 1991), [D. 22, ¶ 3]; (official public records not disputed), AAA

Wholesalers Distribution, LLC v. Tropical Cheese Indus., Inc., C.A. No. 18-542WES, 3 n.4

(D.R.I. Sep. 3, 2019). [D. 22, ¶ 4]; [Appellant] adequately states numerous material

facts within his Complaint. See “DECLARATION OF MATERIAL FACTS” [D.

18.1] and [D. 22, ¶ ¶ 7, 8-10]; [D. 24, ¶ ¶ 10-18]. ("Now, if there be any combination

of men who shall combine and conspire together for the purpose of preventing a
Page 25 of 50
witness from testifying in a court of the United States or to punish a witness for

testifying truthfully, that combination is an offence against the United States."); See

Cong. Globe, 42d Cong., 1st Sess. S. 568 (1871) (Senator Edmunds). (Section 2 "gives a

civil action to anybody who shall be injured by the conspiracy."). Thus, the statutory

language as well as its purpose refute any contention that "injur[y] in person or

property" is limited to physical harm. id. at S. 567 (1871) [D. 1, ¶ 13]. Congress used

language broad enough to reach the wide variety of methods by which witnesses can

be subjected to intimidation and retaliation, including methods that it may not have

contemplated at the time. [D. 15.1, p. 5]; (1985(2) requires only that the conspirators

agree to injure a person "because of" his assertion of rights in federal court.) and

(providing a remedy for a plaintiff who has been retaliated against for having

instituted a prior lawsuit.) Irizarry v. Quiros, 722 F.2d 869, 871 (1st Cir. 1983); Wright v.

No Skiter Inc., 774 F.2d 422, 426 (10th Cir. 1985) (similar); Powell v. City of Pittsfield 143

F. Supp. 2d 94 (D. Mass. 2001). [D. 15.1, p. 5]

51. Appellant believes his [D. 1] Complaint claims are more than just bald

assertions, are not frivolous and all conclusory declarations, which are based in

material facts, which were left unchallenged by the Order [D. 13] or Reconsideration

Order [D. 25] or the Defendants numerous "Periphrastic circumlocution(s)"

Objections, at [D. 16] and [D. 17]. Is it "hyperbolic rodomontade” when the

Appellant claims Court Bias in favor of Twitter and its attorneys, and then supports

those allegations with 68 public documents which document favors and privileges
Page 26 of 50
given to Twitter by the Court? [D. 1, ¶ ¶ 21-88, [PE 001-068]. Or that JOHNSTONE

promulgated, implemented and utilized these "policies" in favor of Twitter, 66 times

over 2 years? Where is the evidence that contradicts these allegations? Then would it

be a bald assertion to now allege that the Court was bias, was unconstitutional,

without clear jurisdiction over the Appellant and over his CASE, and through

JOHNSTONE communicated with COIE attorneys over that 2 year period and

through 4 cases? And that Twitter’s reply brief to the Appeals Court illustrates further

ex-parte communications. [D. 1, ¶ ¶ 187-191]; [D. 15.4, ¶ 35].And that EACH

Defendant omitted the fact to the Appellant that the Court was bias in favor of

Twitter and COIE attorneys.

52. Is it a bald assertion to allege ECK and SCHWARTZ made misrepresentations

to the Court when you compare ECK’S original frame of mind, that SCHWARTZ

was not eligible for bar when she submitted Twitter’s Dismiss Motion, [D.1, PE- 00]

versus ECK’S and SCHWARTZ’S submittals thereafter which were all in

contradiction of ECK’S e-mail, and therefore a misrepresentation of material fact.

Would it be plausible for the "Court" through its judges to slightly tilt it's judgments

in favor of a party they have already given 66 privileges to? [See Flow Charts, Case:

20-1933, Doc. 00117761529, pp. 44-51]. Is it plausible that the judges involved with

giving privileges out to private parties, might not want that information to be public

and would make omissions?

C. Further Arguments
Page 27 of 50
53. SCHWARTZ objection states "Verogna’s Section 1985(2) claim should also be

dismissed for failure to allege any “force, intimidation, or threat” from the supposed

conspiracy." [D. 17, p. 7] And "The Court should also dismiss Plaintiff’s Section

1985(2) claim because he has not suffered a cognizable injury." [D. 17, p. 8].

54. Appellant responded through Reply [D. 24, ¶ ¶ 10-18] stating, in part, that the

[Complaint] states material facts sufficient to allege that he was deterred by force,

intimidation, threat, and retaliation as a witness plaintiff in the First District Court [D.

1 ¶ ¶ 117, 161, 162, 166, 243.] "intimidation" were not limited to actions involving the

use or threat of force but also applied to economic coercion.) e.g., Vegelahn v. Guntner,

44 N.E. 1077 (Mass. 1896); (intimidation not limited to threats of violence or physical

injury); Baldwin v. Escanaba Dealer's Ass'n, 130 N.W. 214, 219 (Mich. 1911). [D. 24, ¶

14], and that although [he] continues to vigorously litigate his CASE in the Appeals

Court, this does not mean that he hasn’t already suffered or doesn’t continue to suffer

cognizable injuries. Even if the Appeals Court decides in Appellant’s favor on all

counts and reinstates his claims in his CASE, he still has suffered cognizable injuries,

such as exorbitant amounts of money for appeals, and other costs enumerated in his

Complaint at [TD. 1, ¶ 126], due to Defendant’s deterrence and retaliation for his

participation. Brogan v. United States, 118 S. Ct. 805, 809 (1998), and was injured in his

person or property on account of his having commenced and continued his CASE. In

Page 28 of 50
short, Appellant has already suffered injuries regardless of any outcome in the

pending appeals of his CASE in the Appeals Court. [D. 24, ¶ 15].

X. APPELLANT'S 42 U.S.C. § 1986 CLAIMS

55. Appellant would agree that “there can be no violation of § 1986 without a

violation of § 1985,” [D. 13, pge. 14], but disagrees that a violation of § 1985 has not

been alleged, because the [D. 1] Complaint alleges plausible violations under Section

1985(2) (clause i) and Section 1985(3) (clause iii), (SEE ABOVE); [D. 1, Count I, ¶ ¶

216-256].

XI. APPELLANT'S BIVENS CLAIMS

A. Background

56. The [D. 13] Order incorrectly concludes that neither Attorney Eck nor

Attorney Schwartz is a state or federal actor. ECK [D. 16, ¶ 16], that Attorney Eck is

not a “federal official,” ECK [D. 16, ¶ 16], and that there is no cause of action under

Bivens against Attorney Eck or the other defendants. ECK [D. 16, ¶ 16], because the

Supreme Court “has made clear that expanding the Bivens remedy is now a

‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1857, (2017), citing Ashcroft v.

Iqbal, 556 U.S. 675 (2009). ECK [D. 16, ¶ 17].

57. The [D. 13] Order also misrepresents material facts when it states that the

Complaint alleges Bivens claims against MCAULIFFE and JOHNSTONE because

they allowed Attorneys Eck and Schwartz to appear on Twitter’s behalf and defend

against Verogna’s accusations, or because of ECK'S membership in state bar

Page 29 of 50
organizations, or because defendant’s lawyers showed up in court and defend against

a plaintiff’s accusations. [D. 13, p. 15].

58. The [D. 1] Complaint alleges violation of Appellant's (1) due process and

adequate, effective, and meaningful access to the Courts and justice guaranteed by the

First and Fourteenth Amendments to the United States Constitution; (2) petition or

right to seek judicial redress for grievances including the Due Process Clauses of the

Fifth and Fourteenth Amendments, the Privileges and Immunities Clause of Article

IV, and the First Amendment's Petition Clause of the United States Constitution; (3)

due process to an impartial tribunal under the Fifth Amendment; (4) right to a jury

trial under the Seventh Amendment; (5) right to equal protection of the laws

guaranteed by the Fifth Amendment to the United States Constitution, [D. 1, ¶ 125],

and brought suit against all Defendants under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens "allows constitutional claims

against federal officials, in their individual capacities, for actions taken under color of

federal law." McCloskey v. Mueller, 446 F.3d 262 (1st Cir. 2006); Ortiz-Romany v. U.S.,

497 F. Supp. 2d 285, 289 (D.P.R. 2007). [D. 15.1, ¶ 40].

59. Appellant incorporates all arguments put forth in [D. 15, ¶ ¶ 40-61, 67, 76, 99].

[D. 22, ¶ ¶ 11-15, 22-30].

B. JOHNSTONE and MCAULIFFE

60. The Complaint here pleads all the necessary elements to maintain a Bivens

claim against JOHNSTONE and MCAULIFFE. First, the individual defendant-

Page 30 of 50
judges, were both federal officers ("defendants-officers"), who were allegedly acting

under the “pretense” of law by either participating in a federal civil action [D. 1, ¶

275], or presumably issuing orders based upon the facts and applicable laws. [D. 1, ¶

276]. Moreover, plaintiff alleges defendants-officers were acting in their individual,

not official capacities, in promulgating, administering or promoting the ILLEGAL

POLICY, and then purposely omitting those material facts to the Appellant and

actively convincing the Appellant that legal policies were being used, and that the

orders were based upon the facts and applicable laws, when in fact they were not. [D.

15.1, ¶ 47].

61. A cause of action and damages remedy can be implied directly under the

Constitution when the Due Process Clause of the Fifth Amendment is violated. Davis

v. Passman, 442 U.S. 228 (1979) quoting Cf. Bivens; Butz v. Economou, 438 U. S. 478. Pp.

442 U. S. 233-249. [D. 22, ¶ 27].

C. ECK and SCHWARTZ

62. Neglecting to tell the whole story by purposefully omitting important facts

could serve to assist criminal activity. Even though ECK and SCHWARTZ had a duty

not to make fraudulent statements, Hansen v. Anderson, Wilmarth & Van Der Maaten

(Iowa 2001) 630 N.W.2d 818, 825-826 (Hansen ), ECK and SCHWARTZ

misrepresented the illegality of their Motion to Dismiss, SCHWARTZS’ pro hac vice

status, while omitting material facts of the ILLEGAL POLICY. [D. 15.2, p. 9].

Page 31 of 50
63. ECK and SCHWARTZ owed a duty to the Appellant, [D. 15.2, p. 9], and failed

to disclose material fact of the ILLEGAL POLICY to a tribunal when disclosure was

necessary to avoid assisting criminal or fraudulent acts by TWITTER, and submitted

material misrepresentations which were acts of intentionally hiding the ILLEGAL

POLICY and then fabrication of a material facts, which, if known to the Plaintiff,

could have terminated, or significantly altered the basis of a contract, deal, transaction,

or settlement.

64. Private individuals act under color of state law when they conspire with a state

official to violate a person's civil rights.[19] In Adickes the Supreme Court described

the proof necessary to establish a Private citizens can act under color of state law. The

Court stated that the plaintiff had to demonstrate that the alleged conspirators "had a

'meeting of the minds' and thus

_________________________
[19] See Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Goodman v. Kennedy, supra, 18
Cal.3d at p. 346, 134 Cal.Rptr. 375, 556 P.2d 737;  Buckley v. Gray, supra, 110 Cal. at p.
342, 42 P. 900;  Pavicich v. Santucci, supra, 85. Cal.App.4th at pp. 392, 397-398, 102
Cal.Rptr.2d 125;  Jackson v. Rogers & Wells, supra, 210 Cal.App.3d at p. 345, 258
Cal.Rptr. 454;  Cicone, supra, 183 Cal.App.3d at pp. 201-202, 227 Cal.Rptr. 887;  Fire
Ins. Exchange, supra, 643 N.E.2d at pp. 312-313;  Hansen, supra, 630 N.W.2d at pp. 825-
826;  Slotkin, supra, 614 F.2d 301;  Rest.3d, Law Governing Lawyers, § 98, coms. a-c,
pp. 58-59.) An attorney can be liable to a nonclient, even an adversary in litigation, for
fraud or deceit.’ ” (Hansen, supra, 630 N.W.2d at p. 825, citing 1 Mallen & Smith, Legal
Malpractice (5th ed.2000) § 6.7, p. 564, fn. 1). [D. 15.2, p. 9]. involving a conspiracy
with a state official. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); Moose
Lodge No. 107 v. Irvis, 407 U.S. 163 (1972); Burton v. Wilmington Parking Auth., 365 U.S.
715 (1961). See generally Note, State Action: Theories for Applying Constitutional
Restrictions to Private Activity, 74 Colum. L. Rev. 656 (1974). [D. 15.1, p.9].

Page 32 of 50
reached an understanding" to take action that would deprive the plaintiff of her civil

rights Id. at 158. See [D. 1, ¶ ¶ 106-128 ]. Mere joint action will not suffice.[20] The

requisite "understanding" may, however, be shown by circumstantial evidence"' and

the fact finder is usually allowed to determine whether the showing has been

made.[21]

65. The Complaint alleges the conduct, time, place, and persons responsible for the

responsible for the alleged civil rights violations, [22] alleges a 'meeting of the minds'

and that an understanding was reached to take action that would deprive Plaintiff of

his civil rights, [23], and that it was willful participation ... meaning voluntary

uncoerced participation by each defendant. Harvey v. Plains Twp. Police Dept., 421 F.3d

185, 195-96 (3d Cir. 2005). [D. 15.2, p. 10].

__________________
[20] While the plaintiff need not show an express agreement among the conspirators,
he must demonstrate "that there was 'a single plan, the essential nature and general
scope of which [was] known to each person who is to be held responsible for its
consequences.'" Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979) (quoting
Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971)). [D. 15.1, p.9].
[21] ("The existence or nonexistence of a conspiracy is essentially a factual issue that
the jury, not the trial judge, should decide."). Hampton, 621. [D. 15.1, p.9].
[22] Evancho v. Fisher, 423 F .3d 347, 353 (3d Cir. 2005) (citing Boykins v. Ambridge Area
Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980));
[23] Adickes v. S.H. Kress & Co., 398 U.S. 158 (1970).
Page 33 of 50
XII. CLAIMS OF JUDICIAL IMMUNITY

A. Background

66. The [D. 13] Order concluded that; MCAULIFFE and JOHNSTONE'S actions

were; indisputably judicial in nature. [24] [Id. pge. 10]; taken as part of their “their

judicial functions” [25] [Id. pge. 9]; related to the individual judges’ actions in their

roles as judges." [Id. pge. 13]; And that, “[A]n allegation that an act was done pursuant

to a conspiracy has no greater effect than an allegation that it was done in bad faith or

with malice, neither of which defeats a claim of absolute immunity.”, [26] [Id. pge. 11];

are completely immune from this suit. [D. 13, pge. 9]; And are entitled to judicial

immunity." [Id. pge. 7]; And goes on to say the Complaint; is a classic case of a

dissatisfied litigant. [Id. pge. 12]; is vague, [Id. pge. 12]; is unclear and mostly

incoherent, [Id. pge. 12]; lacks an arguable basis under the law, [Id. pge. 9]; "which

leaves no room for any rational person to imagine any bias underlying this decision."

[Id. pge. 7];

67. The Order also erroneously mis-represents that; Appellant argues that

immunity should not apply because the judges’ rulings were wrong."[Id. pge. 11]; and

that, Judges McAuliffe and Johnstone acted within the court’s jurisdiction.[27] [Id.

pge. 12].

_________________________
[24] Quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978).
[25] Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 108 (1st Cir. 2015).
[26] Citing Dennis v. Sparks, 449 U.S. 24, 30-31 (1980).
[27] Stump, 435 U.S. at 356-57.
Page 34 of 50
68. Appellant argues that the overt acts alleged were not judicial in nature

whatsoever, and if they were they were without jurisdiction." [D-15, ¶ 69];

69. The [D. 1] Complaint alleges JOHNSTONE committed at least 12 non-judicial

acts, and in part; Promulgated, implemented an ILLEGAL POLICY which is an

administrative act. [D. 1, ¶ 11]; [D. 15.4, ¶ 1]: Gave legal advice to one party, [D. 1, ¶

¶ 131, 132, 188, 190]; [D. 15.4, ¶ ¶ 2, 36]; Privately conspired to pre-determine the

outcome, [D. 1, ¶ ¶ 106-124]; [D. 15.4, ¶ 3]; Privately conspired to deter and retaliate

against Appellant, [D. 1, ¶ ¶ 106-124]; [D. 15.4, ¶ 3]; Disclosed personal CM/ECF

information, [D. 1, ¶ ¶ 183-185]; [D. 15.4, ¶ 51]; Communicated ex-parte with

defense counsel, [D. 1, ¶ ¶ 183-185, 187, 195]; [D. 15.4, ¶ ¶ 25, 34, 52], which are all

private and non-judicial acts.

70. Acts to determined Orders utilizing JOHNSTONE’S ILLEGAL POLICY, [D.

1, ¶ 151]; [D. 15.4, ¶ 16]; Concealing by scheme or omission of material facts of her

own ILLEGAL POLICY, [D. 1, ¶ 151]; [D. 15.4, ¶ 17]; Or to judicially intimidate,

coerce, or deter the Appellant [D. 1, ¶ ¶ 144, 148]; [D. 15.4, ¶ ¶ 18, 24], which are all

private acts or acts in clear absence of personal and subject matter jurisdiction.

71. The [D. 1] Complaint alleges MCAULIFFE committed at least 30 non-judicial

acts, and in part; gave legal advice to one party, [D. 1, ¶ ¶ 131, 132, 188, 190]; [D.

15.4, ¶ ¶ 2, 36]; Privately conspired to pre-determine the outcome, [D. 1, ¶ ¶ 106-124];

[D. 15.4, ¶ 3]; Privately conspired to deter and retaliate against Appellant, [D. 1, ¶ ¶

Page 35 of 50
106-124]; disclosed personal CM/ECF information, [D. 1, ¶ ¶ 183-185]; [D. 15.4, ¶

51]; communicated ex-parte with defense counsel, [D. 1, ¶ ¶ 185-187]; [D. 15.4, ¶ ¶

34, 52]; which are all private and non-judicial acts.

72. Acts to determined Orders utilizing JOHNSTONE’S ILLEGAL POLICY, [D.

1, ¶ ¶ 117, 139, 143, 144]; [D. 15.4, ¶ ¶ 9, 14]; Concealing by scheme or omission of

material facts of JOHNSTONE’S ILLEGAL POLICY, [D. 1, ¶ ¶ 117, 139, 143, 144,

156, 164, 166, 167, 169, 172, 173, 175, 176]; [D. 15.4, ¶ ¶ 7, 12, 19, 27, 29, 32, 38, 48,

49]; acts to suppress or omit the material facts. [D. 1, ¶ ¶ 156, 157, 159, 160, 162]; [D.

15.4, ¶ ¶ 20- 23]; Ordered without jurisdiction. [D. 1, ¶ ¶ 72]; [D. 15.4, ¶ 37]. Or to

judicially intimidate, coerce, or deter the Appellant [D. 1, ¶ ¶ 117, 139, 143, 162, 164,

166, 167, 169, 170, 172, 175, 176]; [D. 15.4, ¶ ¶ 8, 13, 23, 28, 30, 33, 39, 50]; which

are all private acts or acts in clear absence of personal and subject matter jurisdiction.

73. Additionally, these acts by JOHNSTONE and MCAULIFFE are doubled

when you consider the retaliation factor, [Id. ¶ 82].

74. The [D. 1] Complaint alleges ECK committed at least 24 acts, and in part;

privately conspired. [D. 1, ¶ ¶ 106-124]; [D. 15.4, ¶ 3]; Submitted to the Court,

material mis-representations which contradict his own e-mail statements. [D. 1, ¶ ¶

135, 137, 141, 150, 152, 155, ]; [D. 15.4, ¶ ¶ 4, 5, 6, 10, 11, 15]; Omitted material

facts. Submitted material misrepresentations that his pleadings were his. “Delima 2”.

[D. 1, ¶ ¶ 196-208, 214]; [D. 15.4, ¶ ¶ 26, 31, 41, 43-47]; Submitted material

Page 36 of 50
misrepresentations to Appeals Court, No. 20-1933. [D. 1, ¶ ¶ 192-194]; [D. 15.4, ¶ ¶

40, 42, 53].

75. The [D. 1] Complaint alleges SCHWARTZ committed at least 16 acts, and in

part; privately conspired. [D. 1, ¶ ¶ 106-124]; [D. 15.4, ¶ 3]; Submitted to the Court,

material misrepresentations which contradict ECK'S e-mail statements. [D. 1, ¶ ¶ 135,

137, 141, 150, 152, 155, ]; [D. 15.4, ¶ ¶ 4, 5, 6, 10, 11, 15]; Submitted material

misrepresentations to Appeals Court, No. 20-1933. [D. 1, ¶ ¶ 192-194]; [D. 15.4, ¶ ¶

40, 42, 53].

B. Argument

76. The Complaint alleges, JOHNSTONE acted in clear absence of all jurisdiction

when she promulgated and administered illegal pro hac vice policies, or rules, [28] for

a particular party(s) are not actions taken as part of her “judicial functions” or related

to her actions in her role as a Magistrate Judge. [D. 15, ¶ 80]; See also, [D. 1, ¶ 96];

Ortiz, 285, 291; Forrester, 484 U.S., at 227 -229; Stump v. Sparkman, 435 U.S., at 360 .

[502 U.S. 9, 12]. [D. 15-1, pge 13]; Immunity is not appropriate for acts that simply

happen to have been done by judges,’ such as administrative acts.” [D. 15, ¶ 73];

Forrester 484 U.S. 219, 227 (1988)). [D. 15-1, pge 11]; Justices, together, formulate

rules of the District Court in their administrative functions of the Court and not an

Article I Magistrate judge. ''

_________________________________
[28] An amendment to a federal rule generally takes about three years.
https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments
Page 37 of 50
77. The Complaint alleges, JOHNSTONE and MCAULIFFE acted in clear

absence of all jurisdiction when they agreed or conspired in advance with others to

pre-determine the outcome of the [D. 7] and [D. 39] motions, and to dismiss

Appellant's not immune for "prosecutorial" acts prior to biased decision). If the

alleged agreement manifests both judges participation in the conspiracy, then proof

of the agreement could from the basis of liability whether or not they are immune

from liability for subsequent judicial acts.

78. The Complaint alleges, MCAULIFFE acted in clear absence of jurisdiction

when he Ordered without authority, Ordered knowing the Court was bias, Ordering

utilizing illegal policy, though judicial in nature, were taken in the complete absence of

all jurisdiction." Mireles v. Waco, 502 U.S. 11 (1991).; Stump, 435 U.S. at 356–57); Duty v.

City of Springdale, 42 F.3d 460, 462 (8th Cir. 1994); Cavanagh v. Fayette County. Civil

Action No. 05-1182 (W.D. Pa. Feb. 27, 2006). [D. 15-1, pge 11]; (defendant judges

acted in absence of all jurisdiction.) Bradley v. Fisher, 13 Wall., at 351(1871); (When a

judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes

expressly depriving him

___________________________
[29] In Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976 (5th Cir. 1979) (en banc),
aff'd sub nom. Dennis v. Sparks, ___ U.S. ___, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980),
the Fifth Circuit held that a judge accused of accepting a bribe to enter an injunction
was "unqualifiedly immune from suit for damages occasioned by his judicial act."
Sparks, 604 F.2d at 978.

Page 38 of 50
of jurisdiction, judicial immunity is lost.) Rankin v. Howard, (1980) 633 F.2d 844, cert

den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326. (Some Defendants

urge that any act "of a judicial nature" entitles the Judge to absolute judicial immunity.

But in a jurisdictional vacuum, (that is, absence of all jurisdiction) the second prong

necessary to absolute judicial immunity is missing.) Stump v. Sparkman, id., 435. U.S.

349.

79. Giving legal advice to one party, privately conspiring to pre-determine the

outcome of Appellant's case, privately conspiring to deter and retaliate against

Appellant, disclosing personal CM/ECF information, communicating ex-parte with

defense counsel, are all private acts and not acts reasonably to be expected of a judge.

The expectations of the Appellant was that he was dealing with both JOHNSTONE

and MCAULIFFE in their respective judicial capacities [D. 1, ¶ 225]; Gallas v. Supreme

Court of Pennsylvania, 211 F.3d 768 (2000). [D. 15-1, pge 11];

80. Here, because the Court was in fact bias in favor of Twitter, there can be no

personal jurisdiction over the Appellant and there can be no discretion, for discretion

is incident to jurisdiction.") Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13

Wall. 335, 20 L.Ed. 646 (1872). (A judge must be acting within his jurisdiction as to

subject matter and person, to be entitled to immunity from civil action for his acts.)

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938).

81. ("No judicial process, whatever form it may assume, can have any lawful

authority outside of the limits of the jurisdiction of the court or judge by whom it is
Page 39 of 50
issued; and an attempt to enforce it beyond these boundaries is nothing less than

lawless violence.") Ableman v. Booth, 21 Howard 506 (1859). [D. 15-1, pge 11];

82. The nature of the acts, Id. Gallas, alleged to be committed by JOHNSTONE

and MCAULIFFE are conspiring to commit an offense against the United States

through fraud upon the Court in promulgating and then utilizing an ILLEGAL

POLICY which favors one party over another which creates an unconstitutional

tribunal. Concealing or covering up by any trick or scheme, material facts within the

judicial branch of the United States is a criminal act and not an act to be considered

judicial. A failure to act or an omission can be an overt act, where the co-conspirator

who failed to act had a legal duty to perform the act and he or she omitted

performance in order to further the achievement of the objectives of the conspiracy.

United States v. Curran, 20 F.3d 560 (3d Cir. 1994). [D. 15-1, pge 13]. A failure to act or

an omission can be an overt act, and a criminal act. [D. 15, ¶ 87]; United States v.

Curran, 20 F.3d 560 (3d Cir. 1994). [D. 15-1, MOL, pge 13]. Negligence may result

from omission in respect of duty. [Id. ¶ 86]; Randle v. Birmingham Railway Light Power

Co., 169 Ala. 314, 53 So. 918, 921. [D. 15-1, MOL, pge 13].

83. JOHNSTONE and MCAULIFFE knew or should have known that: (1)

concealing material facts in a judicial branch of the United States would violate 18

U.S.C § 1001; (2) conspiring and acts of coercion against the PLAINTIFF would

violate 18 U.S.C. § 371; (3) giving legal advice to TWITTER would violate 28 U.S.C

§ 454; (4) aiding and abetting MRAZIK and SCHWARTZ would violate 18 U.S.C. §
Page 40 of 50
2(a); (5) acting as an accessory after the fact, would violate 18 U.S.C. § 3; (6)

obstructing justice would violate 18 U.S.C § 1503; (7) disclosing personal information

in violation of the Privacy Act of 1974; (8) legislating your own rules would violate

Article III of the Constitution; (9) acting without jurisdiction would violate Appeal

Court Rules and case precedents, would create a bias tribunal and would violate

Appellant's Constitutional Rights. [D. 1, ¶ 240];

84. Here, the two judges were authorized to make orders utilizing official rules and

policies that streamed down through Article III, but acted without authority when

they decided motions utilizing an ILLEGAL POLICY not derived by Article III

power. [D. 15, ¶ 92];

85. The COMPLAINT alleges JOHNSTONE and MCAULIFFE knew or had the

means of knowing of the defect of jurisdiction. And that there is a material distinction

between a case where a party comes to an erroneous conclusion in a matter over

which he has jurisdiction and a case where he acts wholly without jurisdiction. [D. 15,

¶ 93];

86. JOHNSTONE and MCAULIFEE lacked power and jurisdiction to act and

make judgments or orders based upon the ILLEGAL POLICY, because these

ILLEGAL POLICIES are not rooted in Article III power and are not judicial acts

within the contemplation of law, however much it may have involved the exercise of

judgment and discretion, but is merely the act of the individual, not the judge,

Page 41 of 50
assuming an authority he does not possess. For their wrongful acts of this nature,

JOHNSTONE and MCAULIFFE are liable. [D. 15, ¶ 94];

87. If jurisdiction is defined as the authority to act officially in the matter then in

hand, then how could it be contended that MCAULIFFE had a right to act utilizing

an ILLEGAL POLICY when those illegal rules contain no official authority or power.

No governmental action, such as MCAULIFFE’S, is proper unless a specific statute

states that it is. [D. 15, ¶ 95]; JOHNSTONE and MCAULIFFE, cannot demonstrate

that they were discharging the protected function of the position when performing

the acts [Id. ¶ 73]; Scheuer v. Rhodes, 416 U. S. 232. Pp. 457 U. S. 806-808; Nixon v.

Fitzgerald - 457 U.S. 747, 102 S. Ct. 2690 (1982). [D. 15-1, pge 12].

XIII. AMENDMENT OF CLAIMS

88. Treating Appellant’s well-pled facts as true and drawing all reasonable

inferences in the Appellant’s favor, Valentin v. Hospital Bella Vista, 254 F.3d 358, 363

(1st Cir. 2001). Appellant has established that the District Court has jurisdiction under

1985(2), 1986 and under Bivens, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112

S.Ct. 2130, 119 L.Ed.2d 351 (1992), and that it has authority to exercise jurisdiction

over defendants. Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015).

Appellant’s Complaint contains sufficient factual matter, accepted as true, to "state a

claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,

127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Germanowski v. Harris, 854 F.3d 68, 71 (1st

Page 42 of 50
Cir. 2017), and that, at this time, no amendment of the [D. 1] claims is needed.

XIV. CONCLUSION

89. The Complaint alleges that JOHNSTONE gave privileges to Twitter and

MRAZIK of COIE 66 times, through 3 different judges, when SCHWARTZ

attempted to claim those same privileges, Appellant called out SCHWARTZ and

ECK on other grounds and threatened to expose these privileges. All Defendants,

each with motive, had a meeting of the minds, privately conspired, agreed to use

JOHNSTONE'S ILLEGAL POLICY, preconceive orders and to retaliate and deter

Appellant in his claims by using misrepresentations to the Court and preconceived

Orders. They succeeded until the Appellant found public records which recorded

these privileges, and after the Appellant had already brough an appeal on other

grounds. JOHNSTONE'S acts regarding the policy are "administrative" at best, with

the remainder of the non-judicial acts either private acts or acts without personal or

subject matter jurisdiction, as the Court was bias in favor of Twitter, therefore making

any claim against Twitter, unconstitutional and void. The POLICY demonstrates

communication or a "meeting of minds" for over two years between JOHNSTONE,

Twitter and COIE attorney MRAZIK. ECKS' letter demonstrates that subsequent

submissions to the Court were misrepresentations. The "Orders" demonstrate the

Court utilized the ILLEGAL POLICY versus the law. Twitter's first appeal objection

demonstrates legal advice and ex-parte communication between the Court and COIE

Page 43 of 50
attorneys. SCWARTZ'S replies to the Appeals Court indicate she was of knowledge

of CM/ECF records only held by the District Court and the Appellant.

90. If this Appeals Court performs its two-step process, as intended, Nollet v. Justices

of Trial Court of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d 1127

(1st Cir. 2000), and ignores the false core factual premises presented by the Order and

Defendants, it should find that the well pled facts "plausibly narrate a claim for relief,"

and do establish all the cause-of-action elements for claims under § 1985, § 1986 and

for a Bivens claim and that Appellant's "legal conclusions" are not just supported by

mere conclusory statements, but with fact-specific averments which uphold the

statutory requirements of existing case law such as Langadinos v . Am. Airlines, Inc., 199

F.3d 68, 69 (1st Cir. 2000), and Wang v. Xinyi Liu, Yuanlong Huang, Zhaonan Wang, Bling

Entm't, LLC, 584 B.R. 427, 431-32 (D. Mass. 2018), which means that the District

Court's sua sponte order for dismissal as "frivolous" cannot endure. ” Gonzalez-

Gonzalez v. U.S., 257 F.3d 31, 39 (1st Cir. 2001).

91. This Appellate Court should void or reverse Orders [D. 13] and [D. 25] as

Appellant's claims are not frivolous within the meaning of Swan, are not within the

statutory provisions of 28 U.S.C. § 455(a) and 28 U.S.C. § 455(b), were based upon

material false facts not in the record, because Judge McCafferty is objectively bias in

favor of JOHNSTONE and because both violate Appellant’s Constitutional Rights,

for the reasons set forth above. See [D. 15, ¶ 21].

Page 44 of 50
92. This Appellate Court should void or reverse Orders [D. 13] and [D. 25]

pertaining to any collateral estoppel orders or judgments which are moot as the

Appellant's Twitter CASE is ongoing, the four elements of collateral estoppel under

Grella have not been met, and were based upon materially false facts not in record.

93. Because Section 1985(2) (clause i) and Section 1985(3)(clause iii), and 1985(3)

(clause iii), have no class-based, invidious discriminatory animus requirement, and

because the Court erred in law by requiring the Appellant to allege class-based,

invidious discriminatory animus in his [D. 1] Complaint, and to the correct legal

standard of (clause i) and erred in utilizing a false core factual premise that all Section

1985 suits require a class-based, invidious discriminatory animus, and then dismissing

the case for want of jurisdiction on that basis, [D. 14, ¶ 26], and should be reversed.

94. The Court erred in utilizing a false core factual premise that Appellant's claims

are frivolous and that he brought this action because he disagrees with previous

orders in Case No. 20-536, and erred in law and fact by mis-applying the facts on

record to the correct legal standard by applying the conspiracy requirements under §

1985(2)(Clause i) and then dismissing the action for want of jurisdiction on those

bases. [D. 15, ¶ 21]. As the Appellant has properly alleged a conspiracy and claims

under 42 U.S. Code § 1985(2)(Clause i) and 42 U.S.C. 1985(3) (clause iii) against all

Defendants, and the Court's [D. 13] Order and [D. 14] Judgment Orders should be

reversed and remanded. See [D. 1, COUNT II, ¶ ¶ 257-271]; [D. 15, ¶ ¶ 36-39]. [D.

Page 45 of 50
15.1, pge. 7]. [D. 24, ¶ 19].

95. The Complaint alleges with at least some degree of particularity, overt acts [30]

which defendants engaged in which were reasonably related to the promotion of the

claimed conspiracy. Hoffman v. Halden, supra, 268 F.2d [280] at 295 [(9th Cir. 1959).

96. "Intimidation" or "retaliation" is not limited to actions involving the use or

threat of force but also applied to economic coercion.) Appellant has already suffered

injuries regardless of any outcome in the pending appeals of his CASE in the Appeals

Court. [D. 24, ¶ 15].

97. The Court erred in law in that the Complaint does not expand on Bivens as the

federal officials here, JOHNSTONE and MCAULIFFE, acted without power of their

jurisdiction and similar to that in Bevins, and acted without clear governmental

objectives similar to that in Passman.

98. The Court erred in utilizing a false core factual premise that Appellant brought

this action because he disagrees with previous orders in Case No. 20-536, and erred in

law and fact by mis-applying the facts on record to the correct legal standard by mis-

applying Bivens standards and then dismissing the action for want of jurisdiction on

that basis. [D. 15, ¶ 21]. Because the existence or nonexistence of a conspiracy is

essentially a factual issue that the jury, not the trial judge, should decide, any claims

_______________
[30] The COMPLAINT lists at least seventy non-judicial acts by all Defendants
combined. [D. 15.4, Overt Acts to Further the Conspiracy, 1-52] Each Defendant
[is] responsible for a distinct act or of the acts of other co-conspirators.

Page 46 of 50
against ECK and SCHWARTZ should be reversed and reinstated. The Order and

Judgment with regards to Appellant's Bevins claims should be reversed and reinstated.

99. Immunity should be invoked only to the extent necessary to effect its purpose.

[D.15 ¶ 71]; Doe v. McMillan, 412 U.S. 306, 319-325, 93 S. Ct. 2018, 36 L.Ed.2d 912

(1973).[D. 15-1, pge 10]; Judicial immunity does not include immunity from

prospective collateral relief. [D. 15, ¶ 72]; Pulliam v. Allen, 466 U.S. 522 (1984). [D. 15-

1, pge 11]; ‘The effect of charging . . . conspiratorial conduct is to implicate all . . .

who agree to the plan to commit the wrong as well as those who actually carry it out.”

[D. 15, ¶ 84]; (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784 [157 Cal.Rptr. 392,

598 P.2d 45]. [D. 15-1, MOL, pge 13]; Conspiracy is a continuing offense, the

conspirator "becomes responsible for the acts of his coconspirators in pursuit of their

common plot" [D. 15, ¶ 85]; Pinkerton v. United States, 328 U.S. 640 (1946). [D. 15-1,

MOL, pge 13].

100. When a judge knows that he lacks jurisdiction, which is alleged, or acts in the

face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial

immunity is lost. See Bradley v. Fisher, 80 U.S. (13 Wall.) at 351 ("when the want of

jurisdiction is known to the judge, no excuse is permissible"); Turner v. Raynes, 611

F.2d 92, 95 (5th Cir. 1980) ( Stump is consistent with the view that "a clearly inordinate

exercise of unconferred jurisdiction by a judge — one so crass as to establish that he

embarked on it either knowingly or recklessly — subjects him to personal liability").

Page 47 of 50
101. If, as alleged, Judges JOHNSTONE and MCAULIFFE knew of

JOHNSTONE'S ILLEGAL POLICY, and that the Court was biased in favor of

Twitter, then then both judges acted in the clear and complete absence of personal

and subject matter jurisdiction. If their acts were part of a conspiracy, they both

should properly held responsible for the consequences.

102. The Supreme Court resolved the issue of defendants SCHWARTZ and ECK'S

derivative immunity in Dennis v. Sparks, ___ U.S. ___, 101 S.Ct. 183, 66 L.Ed.2d

185 (1980). The Court held that an immune judge's private coconspirators do not

enjoy derivative immunity. at ___, 101 S.Ct. at 186. It follows that "[p]rivate parties

who corruptly conspire with a judge in connection with such conduct are . . . acting

under color of state law within the meaning of § 1983." Id. at ___, 101 S.Ct. at 187.

Even if further proceedings establish both judges immunity, ECK and SCHWARTZ

thus may be held liable.

103. The Complaint sufficiently demonstrates that Defendants "reached an

understanding" with both Judges to violate Appellant's rights under color of the

Twitter Court proceeding. Adickes v. S.H. Kress Co., 398 U.S. 144, 152, 90 S.Ct. 1598,

1605, 26 L.Ed.2d 142 (1970); see Dennis v. Sparks, ___ U.S. at ___, 101 S.Ct. at 186.

103. Appellant's allegations, which draw some support from affidavits, court

records, motions, objections and orders of the court, raise material issues of fact that

were not fully considered by the district court. Summary judgment was inappropriate,

Page 48 of 50
and the Appeals Court should reverse and remand the [D. 13] Orders and [D. 14]

Judgement and the (D. 25) for re-affirming those Orders, for further proceedings

consistent, and not contrary with the law.

Respectfully,

/s/ Sensa Verogna

Appellant Plaintiff,

Anonymously as Sensa Verogna

SensaVerogna@gmail.com

I declare under penalty of perjury that the foregoing is true and correct. Signed this

27th day of June 2022 in the State of New Hampshire.

/s/ Sensa Verogna

Appellant Plaintiff,

Anonymously as Sensa Verogna

SensaVerogna@gmail.com

Page 49 of 50
 CERTIFICATE OF COMPLIANCE WITH
TYPE-VOLUME LIMITATION, TYPEFACE
REQUIREMENTS AND TYPE STYLE REQUIREMENTS

This brief complies with type-volume limits because, excluding the parts of the

document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table

of contents, table of citations, statement regarding oral argument, signature block,

certificates of counsel, addendum, attachments), as it contains 12,954 words. See Fed.

R. App. P. 28.1(e),29(a)(5), 32(a)(7)(B) & 32(f).

This brief complies with the typeface and type style requirements because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

font size 14 ant type style Garamond and in compliance with Fed. R. App. P. 32(a)(5),

32(a)(6).

Appellant’s brief and appendix are timely. See ORDER Case: 22-1364

Document: 00117877384, Page: 1, Filed on 05/18/2022, with Entry ID: 6496431.

Respectfully,

Dated: June 27th, 2022

/s/ Sensa Verogna

Appellant Plaintiff,
Anonymously as Sensa Verogna
SensaVerogna@gmail.com

Page 50 of 50
 THE U.S. COURT OF APPEALS FOR THE FIRST CIRCUIT

Sensa Verogna, Plaintiff, )

v. ) Appeal Case # 22-1364
Johnstone, Et. al, )
Defendants. )
__________________________________________________________________

v. ADDENDUM- ORDERS OF THE DISTRICT COURT

Attached here within;

1/27/2022 Order of the Court

Case 1:21-cv-01047-LM, Document 13,……………………………………………1

1/28/2022 Judgment of the Court

Case 1:21-cv-01047-LM, Document 14,…………………………..……………….18

3/23/2022 Order of the Court

Case 1:21-cv-01047-LM, Document 25……………………..……………….……..19

v.
 Case 1:21-cv-01047-LM Document 13 Filed 01/27/22 Page 1 of 17

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Sensa Verogna

v. Civil No. 21-cv-1047-LM

Opinion No. 2022 DNH 009 P
Andrea Johnstone, et al.

ORDER

Pro se plaintiff “Sensa Verogna”1 brings this lawsuit against District Court

Judge Steven McAuliffe, Magistrate Judge Andrea Johnstone, Attorney Jonathan

Eck, and Attorney Julie Schwartz. Verogna alleges that the defendants violated his

constitutional rights. The matter is before the court on preliminary review under

Local Rule 4.3(d)(3). Additionally before the court are Verogna’s motion to file an

oversized memorandum (doc. no. 8), his motion to recuse (doc. no. 9), and his motion

to allow alternative service (doc. no. 11).

The court grants Verogna’s motion for leave to file an oversized memorandum

but denies his motion to recuse. The court dismisses Verogna’s complaint for lack of

jurisdiction and, alternatively, because it is frivolous. The motion to allow

alternative service is denied as moot.

1Verogna wishes to proceed anonymously under the “Sensa Verogna”

pseudonym, though he did not file a motion requesting permission to do so. Because
Verogna’s suit is frivolous in any event, the court does not reach the issue of
whether Verogna should be allowed to proceed anonymously.
 Case 1:21-cv-01047-LM Document 13 Filed 01/27/22 Page 2 of 17

STANDARD OF REVIEW

The court construes pleadings by pro se litigants liberally. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007). Because the plaintiff is pro se and has paid the

filing fee, the court undertakes a preliminary review to determine whether it has

subject-matter jurisdiction, and, in any event, the court must raise questions about

its jurisdiction on its own motion. See LR 4.3(d)(3) (initial filings by

nonincarcerated pro se parties shall be forwarded for preliminary review to

determine whether the court has jurisdiction); Fort Bend Cnty., Tx. v. Davis, 139 S.

Ct. 1843, 1848-49 (2019) (observing that courts must consider issues of subject-

matter jurisdiction sua sponte).2

“Courts must move cautiously when dismissing a complaint sua sponte.” See

Clorox Co. P.R. v. Proctor & Gamble Com. Co., 228 F.3d 24, 30 (1st Cir. 2000).

Generally, the court must give the plaintiff notice and an opportunity to address the

issue with the complaint by amending it. See id. There are, however, “limited

exceptions to the general rule barring dismissal without notice,” namely, where the

claims are “frivolous” or contain defects that cannot be cured by amendment. Id.

Frivolity can be generally described as lacking an arguable basis in either law or

fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (defining meaning of

“frivolous” under 28 U.S.C. § 1915); Anders v. California, 386 U.S. 738, 744 (1967)

2 Local Rule 4.3(d)(3) directs the filing to be forwarded to the magistrate judge
for preliminary review, but because the complaint names this court’s only magistrate
judge as a defendant, preliminary review falls to me.

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(defining, in similar terms, frivolousness for purpose of appeals of criminal

convictions); see also Martinez v. United States, 838 Fed. Appx. 662, 664 (3d Cir.

2020) (district court can dismiss suit without granting leave to amend where

defendants are immune from suit). A claim lacks an arguable basis in law if it is

based on an “indisputably meritless legal theory,” Neitzke, 490 U.S. at 325, and it

lacks an arguable basis in fact if it describes “fantastic or delusional scenarios.” Id.

at 327-28.

Although the threshold is more demanding for finding frivolity as opposed to

finding that a complaint merely fails to state a claim under Federal Rule of Civil

Procedure 12(b)(6), the court nonetheless examines the complaint through the same

lens. In other words, the court accepts all well-pleaded facts as true and draws all

reasonable inferences in the complainant’s favor. Hamann v. Carpenter, 937 F.3d

86, 88 (1st Cir. 2019). But the court disregards conclusory allegations that simply

parrot the applicable legal standard. Manning v. Boston Med. Ctr. Corp., 725 F.3d

34, 43 (1st Cir. 2013).

BACKGROUND

Verogna’s claims stem from a separate case, Verogna v. Twitter, 20-536-SM,

which was assigned to Judge McAuliffe and referred in parts to Judge Johnstone.

In that case, Verogna, who sought to proceed anonymously as he does here, alleged

that the defendant Twitter, Inc., suspended and then banned Verogna’s account

after Verogna said (1) that, if he had “special powers,” he would “[b]itch slap that

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commie Bitch who is yelling like a 3-year old!!!” and (2) “Ya, let’s all get cutesy with

a fckn #Traitor who should be hung if found guilty!!” 20-536-SM, ECF doc. no. 1

¶ 18. Verogna alleged that Twitter stopped letting him use its service because he is

white or portrayed himself to be a white person. In terms of legal claims, Verogna

alleged that Twitter breached its terms of service contract and violated his First

Amendment rights to speech and assembly. Twitter was represented by Attorney

Eck, and, on August 19, 2020, Judge Johnstone granted a motion to allow Attorney

Schwartz to appear for Twitter pro hac vice. Ultimately, Judge McAuliffe dismissed

the case after Verogna failed to comply with an order requiring him to pursue his

suit against Twitter (Case No. 20-536) in his own name.3 Verogna appealed the

orders in Case No. 20-536, but the First Circuit dismissed the appeal for failure to

comply with an order to pay a filing fee.

In this case, Verogna alleges that Judge Johnstone and Judge McAuliffe

erred by allowing Attorneys Eck and Schwartz to respond on Twitter’s behalf to

Verogna’s lawsuit, thereby depriving Verogna of various constitutional rights, such

as his rights to free speech under the First Amendment, due process under the Fifth

and Fourteenth Amendments, and a jury trial under the Seventh Amendment.

Verogna alleges that Attorney Eck has ambitions to become a judge himself and

3 Specifically, in Case No. 20-536, Judge McAuliffe directed Verogna to

proceed with the case in his own name within a specified period of time. Verogna
indicated that he had no intention of doing so and filed a notice of appeal. Judge
McAuliffe subsequently noted that dismissal was “inevitable” for failure to comply
with court orders and that the court’s earlier directive was a final order.

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holds various leadership positions in New Hampshire state bar associations.

Verogna asserts that the matter is a conspiracy because, given Attorney Eck’s

ambitions, Judges McAuliffe and Johnstone, and Attorneys Eck and Swartz must

have engaged in improper ex parte communications about the case. Verogna alleges

that Judges McAuliffe and Johnstone were biased in favor of Twitter and Attorneys

Eck and Schwartz. Verogna also disagrees with the court’s decision in 20-536-SM

that prohibited Verogna from pursuing his lawsuit anonymously.

Verogna, however, concedes that “PLAINTIFF could smell something wasn’t

right, and noticed the COURT of PLAINTIFF’S constitutional rights being violated,

but was not able to identify or uncover any other evidence to further support any

claims of bias or underlying unfair treatment at this time.” Doc. no. 1 ¶ 142.

Indeed, most of Verogna’s complaint consists of conclusory declarations that the

defendants acted unlawfully and conspired with one another for economic and

political gain. The complaint repetitively makes legal conclusions mirroring, for

example, the statutory language of 42 U.S.C. §§ 1985 and 1986.

Liberally construed, Verogna’s complaint contains several putative claims,

which can be generally described as the following: (1) conspiracy to unlawfully

intimidate a witness or party to a case in federal court, 42 U.S.C. § 1985(2); (2)

conspiracy to deprive Verogna of equal protection of the laws, 42 U.S.C. § 1985(3);

(3) violations of 42 U.S.C. § 1986; (4) violations of constitutional rights (First, Fifth,

Seventh, and Fourteenth Amendments) under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), or 42 U.S.C. § 1983;

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and (5) a request for attorney fees and punitive damages. Specifically, Verogna

requests $250,000,000 in damages as well as an injunction prohibiting future

constitutional violations by the defendants. None of the defendants has answered

or responded to the complaint; thus, this order is issued on the court’s own motion.

DISCUSSION

Verogna’s claims in this case are premised on disagreements with legal

rulings by other judges of this court. Specifically, Verogna takes issue with findings

by Judge McAuliffe or Judge Johnstone on motions by Attorney Eck or Attorney

Schwartz to appear in defense of the lawsuit Verogna filed against Twitter.

Verogna also appears to take issue with various other rulings on motions filed by

either himself or by Twitter in Case No. 20-536. The court lacks subject-matter

jurisdiction to hear Verogna’s dispute, and, even if it did have jurisdiction,

Verogna’s lawsuit lacks an arguable basis under the law.

I. Recusal is unwarranted.

Relying on 28 U.S.C. § 455 and the due process clauses of the Fifth and

Fourteenth Amendments, Verogna contends that I must recuse myself—and all

other judges in this district—from this case. He argues that because I was the chief

judge of the court while Case No. 20-536 was ongoing and because the suit names

two of my colleagues on this court as defendants, my impartiality might reasonably

be questioned.

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Verogna is incorrect. I need not recuse myself because this lawsuit is

patently frivolous such that no rational person could imagine any bias underlying

this dismissal order. See Swan v. Barbadoro, 520 F.3d 24, 26 (1st Cir. 2008)

(holding that the First Circuit judges need not recuse themselves from appeal of

dismissal of lawsuit brought against District of New Hampshire judge where “the

patently frivolous claims presented leave no room for any rational person to imagine

that any bias could underlie an affirmance”); Barnett v. Barbadoro, No. 9-cv-281-

SM, 2009 WL 2878393, at *1 (D.N.H. Sept. 2, 2009) (declining to recuse from

lawsuit against judge in same district because lawsuit was “patently” and

“completely” frivolous); Loudsenslager v. Laplante, No. 19-cv-865-SM, 2019 WL

4168863, at *1 n.1 (D.N.H. Sept. 3, 2019) (same).

As discussed in more detail below, the court lacks jurisdiction over the case

and, in any event, the claims against Judges McAuliffe and Johnstone must be

dismissed given their entitlement to judicial immunity. The reasons for finding no

jurisdiction and applying judicial immunity in this case are well established by

precedent, which leaves no room for any rational person to imagine any bias

underlying this decision. Accordingly, Verogna’s motion to recuse is denied.

II. This suit is an improper collateral attack on rulings made in another lawsuit
such that the court lacks jurisdiction to hear it.

The core factual premise of Verogna’s suit is his allegation that the rulings

made by Judges McAuliffe and Johnstone in Case No. 20-536 were incorrect. But

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disagreements with rulings in a suit are matters for appeal, not collateral

litigation.4 See, e.g., Forrester v. White, 484 U.S. 219, 227 (1988) (explaining the

public policy behind limiting collateral attacks on judicial decision-making in favor

of establishing “appellate procedures as the standard system for correcting judicial

error”); Span E. Airlines, Inc. v. Digital Equip. Corp., 486 F. Supp. 831, 833 (D.

Mass. 1980) (“Such a review is the function of the Court of Appeals for the First

Circuit to which defendants may appeal should they decide to do so at some time in

the future.”). In other words, this court lacks authority to hear an appeal of the

rulings made by another federal judge. See Celotex Corp. v. Edwards, 514 U.S. 300,

313 (1995) (reiterating that federal court orders are to be respected unless and until

they are reversed either by the issuing court itself or a higher court); Johnson v.

U.S. Judges, No. 14-11273-DPW, 2014 WL 3109962, at *2 (D. Mass. July 7, 2014)

(dismissing lawsuit against federal judges for lack of jurisdiction because district

courts lack jurisdiction to review decisions made by other district courts); cf. Rooker

v. Fid. Tr. Co., 263 U.S. 413, 416 (1923) (“[N]o court of the United States other than

[the Supreme Court] could entertain a proceeding to reverse or modify the judgment

[of a state court] for errors of that character. To do so would be an exercise of

appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly

original.”) (citation omitted).

4“A ‘collateral attack’ is a tactic whereby a party seeks to circumvent an

earlier ruling of one court by filing a subsequent action in another court.” Pratt v.
Ventas, Inc., 365 F.3d 514, 519 (6th Cir. 2004).

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As to Case No. 20-536, only the First Circuit (and then the Supreme Court)

has appellate jurisdiction. See 28 U.S.C. § 1291 (“The courts of appeals . . . shall

have jurisdiction of appeals from all final decisions of the district courts of the

United States . . . .”). Verogna cannot sidestep the appellate courts’ exclusive

jurisdiction to review Case No. 20-536 by recasting the rulings he disagrees with as

part of a conspiracy between the court and opposing counsel to deprive him of his

constitutional rights. See Mullis v. U.S. Bankr. Ct. for Dist. of Nev., 828 F.2d 1385,

1392-93 & n.20 (9th Cir. 1987) (rejecting attempt by plaintiff to evade collateral

attack doctrine by styling the complaint “as a Bivens injunction action”).

Because this court lacks authority to hear a challenge to another federal

judge’s rulings, the court lacks subject-matter jurisdiction to hear Verogna’s claims.

The suit is dismissed for that reason.

III. Judicial immunity provides Judge McAuliffe and Judge Johnstone complete
immunity from this suit.

Even if the court had jurisdiction over this complaint, Verogna’s complaint

lacks an arguable basis under the law. To start, Judge McAuliffe and Judge

Johnstone are protected by judicial immunity. Judicial immunity precludes

lawsuits against federal judges for actions taken as part of their “their judicial

functions” to the extent money damages are claimed, Mulero-Carrillo v. Roman-

Hernandez, 790 F.3d 99, 108 (1st Cir. 2015), and to the extent injunctive relief is

sought. Bolin v. Story, 225 F.3d 1234, 1240 (11th Cir. 2000) (judicial immunity

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extends to claims against federal judges brought under Bivens or seeking

prospective injunctive relief); Mullis, 828 F.2d at 1392-93; Newsome v. Merz, 17

Fed. Appx. 343, 345 (6th Cir. 2001); Mehdipour v. Purcell, 173 F. Supp. 2d 1165,

1167 (W.D. Okla. 2001), aff’d, 62 Fed. Appx. 203 (10th Cir. 2003), cert. denied, 540

U.S. 1056 (2003); see also Matthews v. O’Grady, 2016 WL 438972, at *3 (E.D. Va.

Feb. 2, 2016); Wightman v. Jones, 809 F. Supp. 474, 476 (N.D. Tex. 1992) (“Besides

creating confusion and a multiplicity of litigation, providing an extra collateral

attack on a federal judge’s judicial acts would create an untenable situation

whereby the orders, judgments, and determinations of a federal district judge, an

appellate judge, and even a Supreme Court justice would be subject to review by

and injunctive relief from federal district judges. Such a rule would in effect allow

both ‘horizontal appeals’ and even ‘reverse review’ of federal court decisions.”).5

Verogna complains about rulings made by Judge McAuliffe and Judge

Johnstone in their capacity as the assigned judges in Verogna’s lawsuit against

Twitter—actions that are indisputably “judicial” in nature. See Stump v.

Sparkman, 435 U.S. 349, 362 (1978); Goldstein v. Galvin, 719 F.3d 16, 25 (1st Cir.

2013); Dominic v. Goldman, 2021 WL 2953184, at *4 (D.N.H. July 14, 2021).

5 To be sure, the Supreme Court has held that judicial immunity does not
extend to prospective injunctive relief sought via § 1983 as to state judges. Pulliam
v. Allen, 466 U.S. 522, 541-42 (1984). But Congress abrogated Pulliam by amending
§ 1983, and, as explained in Bolin and Mullis, the reasons for extending judicial
immunity to federal judges for claims for injunctive relief are more compelling than
the reasons for state judges. Bolin, 225 F.3d at 1240; Mullis, 828 F.2d at 1392; see
also Justice Network Inc. v. Craighead Cnty., 931 F.3d 753, 763 (8th Cir. 2019)
(discussing amendments to § 1983 after Pulliam).

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Verogna argues that judicial immunity should not apply because the judges’ rulings

were wrong. But the Supreme Court has given effect to judicial immunity in even

the most egregious circumstances of judicial error. See Stump, 435 U.S. at 362

(holding that “grave procedural errors” by judge in allowing forced sterilization of

young girl were insufficient to overcome judicial immunity); Mireles v. Waco, 502

U.S. 9, 11 (1991) (holding that judicial immunity is “not overcome by allegations of

bad faith or malice, the existence of which ordinarily cannot be resolved without

engaging in discovery and eventual trial”). So, even if Judges McAuliffe’s and

Johnstone’s rulings were wrong in Case No. 20-536 (and, as stated above, this court

has no jurisdiction to opine on that), the result is no different here than in Stump or

Mireles—the judges are absolutely immune from suit. Likewise, even if they were

supported by non-conclusory factual allegations, Verogna’s claims of illegal

conspiracy and improper ex parte communication between the judges and opposing

counsel would not overcome judicial immunity. E.g., Nystedt v. Nigro, 700 F.3d 25,

32 (1st Cir. 2012) (holding that judicial immunity barred claim against court-

appointed special master notwithstanding allegations that special master engaged

in improper ex parte communications); see also Dennis v. Sparks, 449 U.S. 24, 30-31

(1980); Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir. 1987) (“[A]n allegation that

an act was done pursuant to a conspiracy has no greater effect than an allegation

that it was done in bad faith or with malice, neither of which defeats a claim of

absolute immunity.”).

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Verogna’s vague assertion, see doc. no. 1 ¶ 105, that Judges McAuliffe and

Johnstone acted without jurisdiction lacks merit. Indeed, Verogna sought out the

court’s jurisdiction by bringing Case No. 20-536 in this court. In ruling on motions

in that suit, Judges McAuliffe and Johnstone acted within the court’s jurisdiction.

See Stump, 435 U.S. at 356-57 (stating that judicial immunity does not apply where

judge acted in the “clear absence of all jurisdiction.”).

Finally, one purpose behind judicial immunity is to insulate judges “from

vexatious actions prosecuted by disgruntled litigants.” Forrester, 484 U.S. at 225.

Given the tone and context of the complaint, Verogna is obviously a dissatisfied

litigant, unhappy with the result in his prior case and others against well-known

technology companies.6 See Garner v. U.S. Dist. Ct. of S.C., 2009 WL 8762538, at

*2 (D.S.C. Mar. 3, 2009) (“Plaintiff is apparently unhappy with the outcome of his

federal cases/appeals and alleges that the named courts are in a criminal conspiracy

to sabotage Plaintiff's cases. . . .”); Smith v. Scalia, 44 F. Supp. 3d 28, 42 (D.D.C.

2014) (“[T]he instant complaint presents the classic case of a dissatisfied litigant.

6 In his complaint, Verogna references several other cases against technology

companies including Google, YouTube, and Facebook. The cases referenced by
Verogna include Roberson v. YouTube, No. 17-749-JD, Green v. YouTube, 18-203-
PB, and DeLima v. Google, 19-978-JL. Roberson was dismissed for lack of subject-
matter jurisdiction; no appeal was filed. No. 17-749, ECF doc. no. 28. Green was
dismissed after the plaintiff failed to file an objection to the magistrate judge’s
report and recommendation, which recommended dismissal of the suit. No. 18-203-
PB, ECF doc. no. 107. DeLima was dismissed for failure to state a claim upon
which relief can be granted and is now pending appeal in the First Circuit. See No.
19-978, ECF doc. no. 40. It is unclear from the present complaint, which is mostly
incoherent, precisely how these cases are supposed to relate to this case or Case No.
20-536.

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Without question, all of the allegations in the instant complaint relate to the

individual judges’ actions in their roles as judges: the dismissal of Smith’s prior

cases, the content of the written opinions, and the justices’ recusal decisions.”). As

such, this is exactly the type of case for which absolute judicial immunity exists.

Thus, even if the court had jurisdiction to hear this case, Judges McAuliffe and

Johnstone would necessarily be dismissed on the ground of absolute immunity.

IV. The complaint fails to allege facts showing that Verogna is plausibly entitled
to relief.

Lastly, Verogna offers only conclusory facts to support the legal conclusions

in his complaint. The court explains why each of Verogna’s theories necessarily

fails.

A. Claims under § 1985(2) and (3) (conspiracy to deprive of civil rights)

The alleged facts do not support claims under § 1985(2) or (3) because they do

not permit a plausible inference that Attorneys Eck or Schwartz, in conjunction

with Judges McAuliffe and Johnstone, acted to deprive Verogna of civil rights with

a “class-based, invidiously discriminatory animus,” which is an element of a claim

under both § 1985(2) and (3). See Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir.

1975); see also Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 108-09 (1st Cir.

2008) (observing that economically-motivated conspiracies are insufficient for

liability under § 1985(3) and holding that politically-motivated conspiracies are

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 Case 1:21-cv-01047-LM Document 13 Filed 01/27/22 Page 14 of 17

likewise insufficient for liability under § 1985(3)); Dean v. Warren, 12 F.4th 1248,

1255 (11th Cir. 2021). There are no factual allegations from which a plausible

inference of conspiracy can be made, nor are there factual allegations from which a

plausible inference can be made of any defendant acting with a “class-based,

invidiously discriminatory animus.”

B. Claim under § 1986 (neglect to prevent conspiratorial wrongs)

Verogna’s claim that the defendants violated § 1986 necessarily fails because

liability under § 1986 is derivative of liability under § 1985. See Creative Env’ts,

Inc. v. Estabrook, 680 F.2d 822, 834-35 (1st Cir. 1982); Jews for Jesus, Inc. v.

Jewish Cmty. Relations Council of N.Y., Inc., 968 F.2d 286, 292 (2d Cir. 1992). In

other words, “there can be no violation of § 1986 without a violation of § 1985.”

Jews for Jesus, Inc., 968 F.2d at 929. Since Verogna’s claims under § 1985(2) and

(3) fail, his claim under § 1986 fails as well.

C. Claims under Bivens or § 1983

As to any claims for constitutional violations under Bivens or § 1983, none of

the facts alleged indicates that either Attorney Eck or Attorney Schwartz is a state

or federal actor. Accordingly, neither Bivens nor § 1983 apply to them. See, e.g.,

Soto-Torres v. Fraticelli, 654 F.3d 153, 157-58 (1st Cir. 2011). While non-state or

federal actors may in some cases be liable for constitutional violations if they

conspire with a state or federal actor, see, e.g., Gerena v. P.R. Legal Services, Inc.,

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 Case 1:21-cv-01047-LM Document 13 Filed 01/27/22 Page 15 of 17

697 F.2d 447, 449-452 (1st Cir. 1983), Verogna’s conclusion that Attorney Eck must

be involved in some conduct to violate his constitutional rights in conspiracy with

Judge McAuliffe or Judge Johnstone because of his membership in state bar

organizations is not reasonable. All that is alleged is that Attorneys Eck and

Swartz appeared in Case No. 20-536 as Twitter’s retained counsel and defended the

company against Verogna’s lawsuit. It is not a violation of a plaintiff’s

constitutional rights merely for a defendant’s lawyers to show up in court and

defend against a plaintiff’s accusations.

As to Judges McAuliffe and Johnstone, Verogna alleges that they violated his

constitutional rights and are liable under Bivens because they allowed Attorneys

Eck and Schwartz to appear on Twitter’s behalf and defend against Verogna’s

accusations. Even if the judges’ procedural rulings were incorrect (and, as noted,

whether they were or were not is a matter beyond this court’s jurisdiction),

Verogna’s leap from incorrect rulings on routine procedural issues to conspiracy

between court and counsel to deprive Verogna of his constitutional rights is

unreasonable. See Caldwell v. Obama, 6 F. Supp. 3d 31, 47-48 (D.D.C. 2013)

(stating that general accusations of corruption, prejudice, and “back-scratching”

amounted “merely to disagreement with the official actions taken by government

officials with regard[] to the plaintiff’s prior legal proceedings” and do not state

claims for violations of any constitutional rights). As discussed above,

disagreements with rulings in other cases are matters to be raised on appeal in the

pertinent cases; they are not matters for a separate lawsuit nor matters on which a

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legal claim for damages against Attorneys Schwartz or Eck or the issuing judges

can stand.

V. Amendment would be futile.

Given that Verogna’s claims in this case are premised on disagreements with

legal rulings in other court cases and do not allege plausible constitutional

violations, there is no possible cure to the ills of plaintiff's complaint, jurisdictional

or otherwise. Fairly read, the suit is no more than an attempt to revisit rulings

made in Case No. 20-536. There is no indication that Verogna left any relevant

facts out of the 107-page complaint, and Verogna acknowledges in the complaint

that he has no facts to support his theory that the judges and counsel in his case

against Twitter conspired with each other to deprive him of constitutional rights.

Considering all of the above, there is no point in prolonging the inevitable by

providing Verogna with an opportunity to amend. The court lacks jurisdiction to

hear the lawsuit and even if it did not have jurisdiction, the lawsuit is frivolous and

it is obvious from the complaint that Verogna cannot prevail under any

circumstances.

CONCLUSION

The complaint (doc. no. 1) is dismissed without leave to amend. Verogna’s

motion for leave to file an oversized memorandum (doc. no. 8) as to the motion to

recuse is granted. Verogna’s motion to recuse (doc. no. 9) is denied. Verogna’s

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 Case 1:21-cv-01047-LM Document 13 Filed 01/27/22 Page 17 of 17

“Motion for Leave to File Motion for Alternative Service of Summons” (doc. no. 11) is

denied as moot. The Clerk of Court is directed to close the case.

SO ORDERED.

Landya McCafferty
United States District Judge

January 27, 2022

cc: Sensa Verogna, pro se

Counsel of Record

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 Case 1:21-cv-01047-LM Document 14 Filed 01/28/22 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sensa Verogna

v.
Case No. 21-cv-1047-LM
Johnstone et al

JUDGMENT

Judgment is hereby entered in accordance with the Order by Chief

Judge Landya B. McCafferty dated January 27, 2022.

By the Court:

/s/ Daniel J. Lynch

Daniel J. Lynch
Clerk of Court

Date: January 28, 2022

cc: Sensa Verogna, pro se

Counsel of Record
 Case 1:21-cv-01047-LM Document 25 Filed 03/23/22 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Sensa Verogna

v. Civil No. 21-cv-1047-LM

Andrea Johnstone, et al.

ORDER

Plaintiff Sensa Verogna moves (doc. no. 15) under Federal Rule of Civil

Procedure 59(e) to vacate the court’s order and judgment dismissing his suit.

Defendants Jonathan Eck and Julie Schwartz object, and Verogna filed a reply.

The court has also considered Verogna’s “Rule 59(c) Motion to Permit a Reply

Declaration” (doc. no. 18) and its attachment (doc. no. 18-1). Finally, the court also

has before it Verogna’s motions to strike Attorney Schwartz’s and Attorney Eck’s

objections (doc. nos. 19, 21).

A motion for reconsideration under Rule 59(e) requires the movant to

demonstrate a manifest error of law or put forth newly discovered evidence. See

Disaster Sols., LLC v. City of Santa Isabel, P.R., 21 F.4th 1, 7 (1st Cir. 2021).

Verogna has not demonstrated a manifest error of law nor has he set forth any

newly discovered evidence that affects the outcome. To the extent Verogna brings

new allegations in his filings or clarifies existing allegations, they do not affect the

court’s conclusions.

The court acknowledges that it incorrectly stated in the order dismissing this

case that Verogna’s appeal of Case No. 20-536 had been dismissed. However, for
 Case 1:21-cv-01047-LM Document 25 Filed 03/23/22 Page 2 of 2

the reasons noted in Attorney Schwartz’s objection, that Verogna’s appeal in Case

No. 20-536 remains pending before the First Circuit only enhances the basis for

dismissing this case. Doc. no. 17 at 6.

Verogna’s motion for reconsideration under Rule 59(e) (doc. no. 15) is denied

for those reasons, as well as for the reasons stated in the court’s order dismissing

the suit (doc. no. 13), and for the additional reasons stated in both Attorney Eck’s

objection (doc. no. 16) and Attorney Schwartz’s objection (doc. no. 17). Verogna’s

motions to strike Attorney Schwartz’s objection (doc. no. 19) and Attorney Eck’s

objection (doc. no. 21) are denied. Verogna’s “Rule 59(c) Motion to Permit a Reply

Declaration” (doc. no. 18) is granted in that the court has considered Verogna’s

arguments and additional allegations, but is otherwise denied.

SO ORDERED.

Landya McCafferty
United States District Judge

March 23, 2022

cc: Sensa Verogna, pro se

Counsel of Record