CIVIL ACTION NO. 19-CV-70052-LTB-GPG
MATTHEW HALE, J.D
RUDY MARQUES, ET AL
PLAINTIFF'S OBJECTIONS TO MAJISTRATE'S RECOMMENDATION TO DISMISS IN PART (DOC 8)
Now comes Plaintiff Matthew Hale, J.D,
Objecting to the Magistrate's recommendation in all of it's respects and specifically as follows …
1. Claims 2-9, 13-14 and 16-19 may not lawfully be dismissed since the judgement of Hale V Federal Bureau of Prisons, ET AL, 18-1141, 2019 WL 117616, has not yet become "final"
The entire predicate for the Magistrate's recommendation that claims 2-9, 13-14 and 16-19 be dismissed is that the judgement of Hale V. Federal Bureau Of Prisons, et al. has become "final" (Doc 8. at 4-8)
The Magistrate is quite simply incorrect. The tenth circuit only denied Hale's petition for panel rehearing and for rehearing En Banc on March 18th 2019 and thus Hale has 90 days from that date in which to file a petition for a writ of certiorari with the supreme court (see rule 13 (3) of the rules of the supreme court of the United States) (This court can see for itself by reviewing the tenth circuit's docket that rehearing was in fact denied on March 18th 2019)
Why the Magistrate assumed that no such petition for panel rehearing had been filed, or that Hale was not going to petition for the supreme court rule of his case, or was unaware of the fact that a case is not "final" until the time for filing a petition for a writ of certiorari with the supreme court has passed or such a petition has been denied, Hale does not know but clearly the Magistrate's recommendations as to these numerous claims is in error.
As a matter of fact Hale is busy putting together his petition for a writ of certiorari at this time and had to interrupt that work in order to file these objections to the Magistrate's (premature) recommendations.
Hale V. Bureau of Prisons is not "final" and will only become final if and when the supreme court denies cert. or grants cert. and rules in the respondents favor on the merits. On the other hand it is entirely possible that the supreme court will grant cert. and reverse the tenth circuit. A case can not possibly be final when it is still subject to review, namely by the supreme court.
Therefore, the Magistrate's recommendation that claims, 2-9, 13-14 and 16-19 of Hale's complaint be dismissed, must be overruled. The recommendation is in fact frivolous since Hale V. Federal Bureau of Prisons is not yet final. That case is going to the supreme court!
2. Claim 22 may not lawfully be dismissed either since no court has ruled as to the truth of the Warden's specific statement of fact which he made to the senator (Doc 8. at 8-10)
None of the quotations cited by the Magistrate from the tenth circuit go to weather the specific statement that Creativity " advocates for violence motivated by racial discrimination" is in fact true of false (Id at 10) It is, in other words, entirely possible that the statement which warden Waterousiam made to senator Duckworth is false not withstanding all of the findings or opinions of the tenth circuit cited. That is because there has been no adjudication whatever that Creativity "Advocates for violence motivated by racial discrimination" the specific statement which Waterousiam made.
Weather Creativity poses a loose or vague "threat" as far as the BOP is concerned is an unactionable opinion, Waterousiam, on the other hand, made a specific statement of fact about the religion (and Hale) concerning a supposed advocacy of racial violence that is subject to defamation law accordingly. "Advocacy" is a deliberate espousal and that has yet to be shown about Creativity.
Hale can "show that it (the statement) is false" (Doc 8 at 10) and he must be allowed to in the course of this case. Hale can and will prove in the course of this case that Creativity does not "Adovacte for violence motivated by racial discrimination" That was a very specific libel on Waterousiam's part and Hale has a legal right to try to prove that. There is nothing "legally frivolous" about a claim that can still be proved.
For the foregoing reasons, the Magistrate's recommendation that various claims of Hale's complaint be dismissed (Doc 8) must be overruled in it's entirety.
Matthew Hale, J.D
May 6th 2019