It Ain’t Even 10 Days n’ Judge Alfred H. Bennett’s Already Violating The First, Fifth and Fourteenth Amendment

Burke v. Ocwen et al

4:21-cv-2591 (10 Aug., 2021, S.D. Tex.)

United States District Court
Southern District of Texas
ENTERED
August 10, 2021
Nathan Ochsner, Clerk

AUG 17, 2021 | REPUBLISHED BY LIT: AUG 17, 2021

Date: Aug. 17, 2021

Lisa Edwards, Case Manager
To United States District Judge Alfred H. Bennett
United States District Court
515 Rusk St, Room 8624
Houston, TX 77002
Telephone: 713-250-5850

By Email Only to : Lisa_Edwards@txs.uscourts.gov

Dear Madam,

Re:      S.D. Tex Case 4:21−cv−02591

            Burke et al v. Ocwen Loan Servicing, LLC et al

We refer to the alarming and unconstitutional response denying our filing by efile and/or CM/ECF System. For the avoidance of doubt, John Burke is disabled and Joanna Burke is currently on medication due to great difficulty in walking right now. We are both in our eighties and we are not vaccinated. See; Harris County COVID website; Level 1: Stay Home Unless Fully Vaccinated (Severe Threat)[1]

With that stated, we now address the latest response from this court.

New post: Rather than Resign for the “ClerkGate” Corruption Scandal, Fifth Circuit Chief Judge Owen Deflects Blame https://t.co/BN6rW67UeO

— LawsInTexas (@lawsintexasusa) August 12, 2021

First, this District Court accepted our complaint and payment by efile. Curiously, it was docketed on Monday 9^th of August, 2021 and yet it would take several emails to be assured of the acceptance of our complaint which was finally acknowledged in an email late in the afternoon of Tuesday, 10^th August, 2021.  To now reject efile or ECF filing is violative of our civil and constitutional rights, especially during a pandemic which has flared once more to Category 1 in Harris County.

Second, we raised this very matter in our Complaint, see Doc. 1, in relevant part;

(6) The Plaintiffs are allowed to file by CM/ECF during these proceedings as pro se litigants who are competently trained in  court e-filing and this request should also be granted due to the pandemic

Third, this contravenes your own court procedures, in relevant part;

2. Electronic Filing

The Court requires that parties file documents through the District Court’s Case Management/Electronic Case Filing (“CM/ECF”) System. See Southern District Local Rule 5.1 and Administrative Procedures for CM/ECF (as amended and available at www.txs.uscourts.gov).

Fourth, we are aware that N.D. Tex. accepts non-prisoner, pro se CM/ECF filing automatically in 2021 and it has been the norm for many years.[2]

Fifth, we filed both electronically and by email in the underlying appeal at the Fifth Circuit and waived paper copies of briefs.

Sixth, we are granted CM/ECF filing at the Court of Appeals for the Eleventh Circuit, who also waived paper copy requirement in a very recent order – again, due to the pandemic.

Seventh, this court and in particular, Judge Alfred H. Bennett, is/has operated on a remote conferencing schedule which is contrary to the schedule provided to us: see; Johnson v. Contract Freighters, Inc. (4:21-cv-00879) District Court, S.D. Texas, Doc 2, (March 19, 2021) Order of Conference; JUDGE ALFRED H. BENNETT, on June 4, 2021 at 09:00 AM via Zoom. Counsel will receive connection instructions the day before the setting.

Eighth, we were told this case was “assigned randomly” to Judge Bennett. Based on the Halliburton[3] case and the fact he denied First Amendment access to two letters not recorded on the docket, we would have expected Judge Bennett to have self-recused after finding out he would be receiving this case.

Ninth, we note this case has no email notifications to kajongwe@gmail.com and/or alsation123@gmail.com and we would like that to be implemented, as there was email notifications in the Burke v Ocwen/Hopkins cases before Judge Hittner in this court.

Finally, you may continue to deny our right of access to this court but to do so is violative of our constitutional rights. As such, and depending on your reply, we reserve all our rights.

See; Ringgold-Lockhart v. Cnty. of L.A., 761 F.3d 1057, 1061-62 (9th Cir. 2014)

“Restricting access to the courts is, however, a serious matter.

“[T]he right of access to the courts is a fundamental right protected by the Constitution.” Delew v. Wagner,143 F.3d 1219, 1222 (9th Cir.1998).

The First Amendment “right of the people … to petition the Government for a redress of grievances,” which secures the right to access the courts , has been termed “one of the most precious of the liberties safeguarded by the Bill of Rights.”

BE & K Const. Co. v. NLRB, 536 U.S. 516, 524–25, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002) (internal quotation marks omitted, alteration in original);

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— LawsInTexas (@lawsintexasusa) August 11, 2021

see also Christopher v. Harbury, 536 U.S. 403, 415 n. 12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (noting that the Supreme Court has located the court access right in the Privileges and Immunities clause, the First Amendment petition clause, the Fifth Amendment due process clause, and the Fourteenth Amendment equal protection clause).”

We are capable of CM/ECF filing and clearly that would be the most equitable solution to grant John Burke with ECF filing permissions he currently retains with the Fifth and Eleventh Circuit Courts, as well as Texas State Courts. In the alternative, efile is constitutionally mandated during the pandemic. We duly reiterate, your court accepted our complaint and payment by efile and as such, set its own binding precedent.

Please advise and stay safe during these worrying times and when hospitals are over-capacity with COVID and Delta patients.

Sincerely

/s/ J & J Burke

Joanna & John Burke