Thursday, November 22, 2012

PHILLIP C. OFUME V. AAAA - Civil Docket No. 12-11325-FDS


IN  THE UNITED STATES COURT OF APPEALS
                         FOR THE FIRST CIRCUIT
_________________________________________________________________

             Civil Appeal Docket No._____________________  

             Civil Docket No. of Court below: 12-11325-FDS
 ______________________________________________________

                                PHILLIP OFUME
                                                APPELLANT/PLAINTIFF

                                           v.

                             AMERICAN ASSOCIATION FOR                                                                        
                             AFFIRMATIVE ACTION (AAAA)
                                                  RESPONDENT/DEFENDANT

____________________________________________________________________

        Petition for Review  from the Decision of The US District                                                     Court of the District of Massachusetts Civil Appeal No.  12-11325-FDS
__________________________________________________________


     Before  The Honourable Justice F. Dennis Saylor IV United States District Judge claimed the following that Appellant’s “Action is dismissed pursuant to 28 U.S.C. Sec. 1915(e)(2) for failure to state a claim upon which relief can be granted” and 28 U.S.C. Sec. 1915(e)(2) is cited verbatim below.
 
A.                 MAJOR REASON REVIEW IS INEVITABLE

1.     Strongly Appellant oppose the decision of the Judge to far extent that allowing only 72 rich and wealthy members of AAAA to vote during national election to elect their President and disfranchised or sanction 928 members of AAAA who are poor and indigent are fundamental human rights and constitutional rights issues ( in the United States and world in general) extremely sufficient to exert a “claim upon which relief can be granted” including  in the most corrupt judicial system of the  civilized and uncivilized democratic worlds.

B.                   OTHER REASONS REVIEW MUST BE TAKEN 

2.    Pursuant to the electoral democracy of the United States of America, wealth, payment of due and tax can not disfranchised the citizens of this land from casting their vote during any election.  On December 16, 2011 the rights of the Presidential candidate and electorates were sanctioned by the Respondent because they are poor people and this action is barred under the
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constitution of the United States and United Nations International laws. Therefore based on this unwarranted action the Decision appealed should be reversed in its entirety and with prejudice which will extend to annulment of December 16, 2011 Presidential Election, appointment management committee or the  elected First Deputy President to run the affairs of the presidency of the AAAA and process to re-run December 16, 2011 presidential election between the incumbent and Dr. Phillip Chukwuma Ofume.  Americans or extreme majority (over 95%) of the members of AAAA found that only the Appellant, Dr. Phillip Chukwuma Ofume of the two nominees for President of AAAA is capable to reform AAAA which has remain ineffective since 1974 without progress in the intended target communities and the strands of the mandate of the organization.


C.         PRELIMINARY ARGUMENT ON CAUSE OF ACTION

 3.   The Honourable Justice F. Dennis Saylor IV United States District Judge believes that AAAA must continue to be pleaded on behalf target communities and by themselves  for equity or right equality and be given  peanut under race, ethnicity and related path and that in the United States right to vote during democratic election must be based on wealth, riches and payment of taxes and dues and poor people have no right to vote. American election  laws stated below disagree that these decorations are not pre-requisites to qualify to vote during democratic election in the United States. In perusing the reason given by Judge Saylor, Appellant found that 28 U.S.C. Sec. 1915(e)(2) is contrary to the subject matter  of the Complaint of the Appellant and should not be used to obstruct this Complaint from proceeding to trial. This type of sanction created pitfall for Governor Mitt Romney in the states where there are Voters ID law.

The content of 28 U.S.C. Sec. 1915(e)(2) is as weak as following:

(e) (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

As Plaintiff/Appellant has correctly argued in paragraphs 29 through 31 below, under the directions of the Courts and several Judges of the United States, The Honourable Justice F. Dennis Saylor IV has only one option which is order for Amendment if necessary.

4.    And/or if this beautiful and merit Complaint failed to satisfy  this Judge’s personal interest, two options are opened to the Judge, thus  order the Appellant to Amend his Complaint on the first part and order for service under 28 U.S.C. Sec. 1915(e)(1) which any Judge in US Courts has right to do for unrepresented litigants or Pro se on second part but this Judge did not use these remedies to save human rights or fundamental rights of the electorates and aggrieved candidate for President of
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OFUME V. AAAA

the AAAA, rule of law, democratic process in America, etc.
28 U.S.C. Sec. 1915(e) (1) The court may request an attorney to represent any person unable to afford counsel.”


5.   But  according to the voting rights legislation  and the Constitution of the United States 28 U.S.C. Sec. 1915(e)(1) and 28 U.S.C. Sec. 1915(e)(2) are not sufficient to dismiss Appellant’s Complaint which is severe forms of obstruction to implement democratic process to get a  leader elected by the people in the United States and world in general.


6.     December 16, 2011 Election to elect (Dr. Phillip C. Ofume or AAAA  incumbent President, Mr. Gregory T. Chambers). The election was rigged by obstruction, sanction and censorship and the entire process and procedure of democratic election were breached and Election and Voting Rights Acts and constitutional Amendments on right to vote of the United States listed above/below were flagrantly abused. Extreme majority of the Voters were sanctioned to the limited extent that only 72 rich and wealthy members of over 1000 members were allowed to vote and all the poor people were not allowed to vote. Below Appellant/Complainant seeks permanent and temporary injunctive relief to annul the December 16, 2011 election and re-re-run this election to enable over 1000 members to elect candidate of their choice. Additionally, Appellant sought a declaratory order  that democratic election in the United States cannot be governed by riches and wealth and poor people cannot be deprived because of the inability to pay membership dues and taxes.


D.                        PRACTICAL QUESTION FOR REVIEW


7.     Whether action of the Defendant, AAAA did not violate  U.S. Voting Rights Acts 1957, 1965 and 1982; United States Code TITLE 2. THE CONGRESS Subchapter 1 Sec. 434 (f) (Disclosure of Electioneering Communications); 5th, 14th, 15th, 24th, etc Amendments of the Constitution and Bill of Rights of the United States of America;


8.    Whether the presiding Judge erred under Pro se  condition of the Appellant in the court below and other courts across the United State when the Judge failed to allow Appellant to amend his Complaint if necessary.


9.      Whether failure to pay tax and dues, (24th Amendment of the Constitution of the U.S,), poverty and lack of money and other wealth could create disenfranchisement on right to vote in the election to elect President and other elective offices in the United States.

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OFUME V. AAAA

 E.                         STATEMENT OF FACT


10.      On before June there was strong outcry that since 1974 the AAAA has made no progress based on its intended mandate in the United States of America. Over 1000 members desire change to response to failure of equity or equal rights in education, healthcare, employment, and majority of the services across the United States. In  the U.S. only the Appellant was selected to realize this great change.


11.    In Nigeria same call is mark up and the citizens there want the Appellant to be the President of Nigeria 2015. His campaign for the President of Nigeria 2015 is located at: ofume-woman.tumblr.com


12.    In the United States on the bid for the National President of AAAA, Complainant researched and investigated the snail progress of the AAAA, 1974 - present and found that there is no progress measurable with the long period and resources pumped into the Association particularly that the past and present work of the association is fruitless and a strong delay to the development of the target communities because equity in education, employment, housing, healthcare, etc are pleaded under race, ethnicity, color, etc which are contradictory (see campaign for President of AAAA manifesto of the Complainant below). The manifesto drew wide array of support within and outside the membership of AAAA and Complainant was regarded as “Messiah” for the focus communities which AAAA services are directed.


13.     Complainant designed and developed a mechanism of change reliant on fact and evidence that Affirmative Action in 20th, 21st, etc centuries can not continue to be pleaded under race, color, ethnicity and related decoration without competitiveness pursuant to standard of education or access and realization of quality and standard education pre-k-12 et als in the predominantly non-white schools or Urban and Mixed Urban schools which will create a physical human turnout with A/A+/B+ to join other candidates that compete for best pre-k - tertiary institutions across the United States which are pathway to earn the requisites to further join the grand competition for jobs to break the longstanding color and race vested national oligarchies in education and employment.


14. Letter of Nomination for National Office of the President was written, issued and sent by Attorney Shirley Wilcher (Executive Director of AAAA) dated October 25, 2011. Complainant, Dr. Ofume was nominated to contest for the President of the AAAA. Dr. Ofume accepted the nomination and presented the credentials located at:

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OFUME V. AAAA

14.a.

14.b.


14.c.


14.d.



14.f.


14.g.


14.h.


14.i.


14.j.



15. Completed prerequisite questionnaire and other submissions and submitted within allowed time frame on November 7, 2011 and Complainants’ name and other particulars were submitted

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OFUME V. AAAA

on November 6, 2011 and placed on the ballot and ready for voting immediately. http://phillyimc.org/en/event/vote-dr-phillip-chukwuma-ofume-president-a... EXHIBIT D


16. Between October 2011 and date of this Complaint, Complainant has written and telephoned the corporate headquarters of the Respondent to request for the demographic statistical data to enable him know the total physical population of the members of the Respondent and after several months, Respondent summarily wrote, "members of AAAA is about 1000". Thereafter, second round of communications remain stocked without further communication to disclosure complete membership population figure of Respondent's organization.


17. Respondent refused to disclose complete region by region membership statistics or demographic data of the population of the members of AAAA to enable candidates campaigning for different offices including President know the number of voters and majority of the members of AAAA was deprived of the right to vote to elect candidates of their choice.


18. Several months after the national election December 16, 2011 members were told that AAAA members are about 1000 and shocking, only 72 rich and wealthy members were allowed to vote on December 16, 2011 and over 928 member were deprived the right to vote for the candidates of their choice.



F.                                              ARGUMENT


19. Respondent's national election which was conducted on December 16, 2011 is one of the most fraudulent and voters sanctioned elections in the United States of America on before and after 1789 (http://www.whitehouse.gov/about/presidents/ georgewashington) and permanent injunction must be granted to annul the election conducted on December 16, 2011and thereafter upon granting the Order sought, Complainant request this Court to re-run this election to use proper electoral remedy under the Right to Vote Act and the Amendments of the Constitution of the United States to include over 928 voters unlawfully sanctioned on before December 16, 2011.


20.    Restating that ONLY 72 rich and wealthy voters were allowed to vote. The Complainant, Dr. Phillip Ofume and the incumbent national President, Mr. Gregory T. Chambers and other aggrieved candidates will be presented to re-run the contest and must be observed by the domestic and international observers because there is doubt that this election is similar to the
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OFUME V. AAAA

election conducted before 1957.


21. Under this dictatorial and anti-democracy election which was conducted on December 16, 2011, only 72 rich and wealthy members were allowed to vote out of over 1000 members disclosed so far by the Respondent. Over 928 potential members were sanctioned and deprived right to vote to elect their candidates. 72 rich and wealthy members were allowed to vote and incumbent President will be imposed on them as their leader or president without their votes. Onlookers asked whether America is still below the base line as an under-developed democracy.


22. The result was delayed as if 72 voters are difficult to count and winner (incumbent president) was declared winner after several days sequel final voting by 72 rich, wealthy and high class members on December 16, 2011. In a transparent election in which only 72 Voters voted would not take more than 1hour to declare winner but they wasted several days to declare and release the result.


23. The interest to impose incumbent on voters continues to ensue and fortified under delay tactics created to delay disclosure of the major electioneering communications which include but unlimited to full data of the head count of the members of the AAAA. This delay jumped the time to file this Complaint. The full membership population data of the members of the AAAA has not been disclosed and Complainant seeks Order of this Commission on Respondent to disclose the full number of the members of the AAAA.  The Court below wasted several months to send the decision appealed.


24. Adequately constructed that the action of the Respondent violates the U.S. Voting Rights Act 1957; Voting Rights Act 1982; United States Code TITLE 2. THE CONGRESS Subchapter 1 Sec. 434 (f) (Disclosure of Electioneering Communications); Voting Rights Acts 1965 - June 1982 efforts made by the lawmakers of the United States to right that wrong of straining right to vote or when millions of Americans (including AAAA members) were prevented in the 21st century from voting same way their parents and others were sanctioned before 1957. With great shock that they continue to be prevented and denied the right to vote because they are under district, regional, county, state and federal poverty level and they are outside the rich, wealthy and upper classes; "The right is one which no American, true to our principles, can deny" (President Lyndon B. Johnson - 08/06/2965); 14th, 15th, and 24th Amendments of the Constitution of the United States, and see the case,Mobile v. Bolden (Fifth Circuit Court of Appeals).


25. Further argued that action of the Respondent ignores the determination in Bolden v. Mobile, 571 F.2d 238, 243 (5th Cir. 1978), Complainant based his disenfranchisement claim on the
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OFUME V. AAAA
constitutional risk that electoral procedures, such as at-large systems in which one candidate is elected by a majority of those voting, may be used to "dilute," or to break down the voting power of an election where rich and poor are struggling to out-fight themselves (Id. at 243 n. 3) but the decision makers of AAAA or respondent ignored all the Voting Right Acts, 1957, 1965 and 1982 and sanctioned members with lay excuse reliant on poor and rich sub-division as if these Acts and amendments of the constitution of the United States were worthless or not made at all.



26. From all indications, voters want change under the power of their votes because Complainant will make the milestone which is unmade since 1974. The changes, innovation and development fortitude stated in paragraphs 14 have energized over 928 voters to persuade the Complainant to proceed to file this appeal. Several voters pleaded to the Complainant not to send them e-mail and other messages including the social media because their employers will fire them if they uncover the relationship between Complainant and them (intended voters). Majority of these intimidated voters are adopted in several tertiary institutions with the rank of director of the embedded “AAAA” which is an institutionalized AAAA . They are very scared because they are under the service and answerability of white masters and bosses.



27. Over 98% of the AAAA membership voters was urban and mixed urban colonies. The concentration of the voters interested in Dr. Phillip C. Ofume's magnetic program of change and progress won the heart of over 97.9% of the AAAA members' Votes on December 16, 2011 but right to vote was sanctioned under the auspice of wealth and the moneyed swag of big or multi-billion dollars members. They (anti-change members) feared change because the rich, wealth and upper class think that the urban and mixed urban communities will emerge to take theeir job, congress of the United States, Presidency, good life services, etc because of his (complainant's) powerful AAAA International New Era Movement for Change (NEMC) effective 2012 and in part located at:


28.a.


28.b.

28. c.


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OFUME V. AAAA

28. d.


28.e.


28.f.


28.g.


28.h.


28.i.


28.j.


28.k.


28.l.
Dr. Ofume 's waterproof mandate 2011 AND 2015:


28.m.


28.n.
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OFUME V. AAAA



28.0.


29.    In certain cases (pro se and related others), correctly argued that it’s sufficient for a Complaint to prevail or advance to trial:  In this type of Complaint  several judgments and courts including The Supreme Court of the United States ordered that if court or Judge can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with rule requirements. Now here comes, Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972);  McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999). But this Plaintiff, Dr. Phillip C. Ofume  has worked through several courts in Canada and US and after the highest courts in these countries Plaintiff made mark at the United Nations by winning Government of Canada. Dr. Ofume has interest in U.S., Canadian, UK, French, Russian and Nigerian laws and particularly Dr. Ofume started reading, researching, investigating, learning, writing and practicing U.S. law since August 1989 and right now he has visited over 45 U.S. states and also mastering their laws.

30.   Under Rule 12(b)(6), the "complaint should not be dismissed merely because in part defendants   are crown of the Commonwealth of Massachusetts or the defendants assume that the allegations do not support the particular legal theory they personally  imagine. The court is as usual under oath of  duty to examine the complaint to determine if the allegations contain claim which contain substance which they miscontructed in their mind by assumption. See Bowers v. Hardwick, 478 U.S. 186, 201 (1986) (emphasis supplied). Consideration added in Pro se case is different but Plaintiff's  complaints match formal complaints filed by attorney of record.

31.     The cases re-cited below maybe able to solve the concerns of the defendants:

31.a.  Further question in issue is whether is even necessary that a " plaintiff or defendant request appropriate relief, properly setout caselaws and formulate legal theories, categorically organize point by point to create   legal theory  as lawmaker ought to do. Toll v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir., 1992). In accordance with the Mass. Superior Court Rules 8 and 7 clearly state initial complaint
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OFUME V. AAAA

does not require to  point to appropriate status or law to raise a claim for relief; complaint sufficiently states a claim even if it points to no legal theory or even if it points to wrong legal theory, as long as "relief is possible under any set of facts that could be established consistent with the allegations") (emphasis supplied).

 31.b.  The Defendants or other  moving parties for dismissal must show "beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46. (emphasis supplied).

31.c.   Moreover, the likelihood that a plaintiff will ultimately prevail on his claims has no place in determining whether or not to grant a motion to dismiss. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (issue is not whether plaintiff will prevail but whether claimant is entitled to offer evidence to support claims)

31.d.    Additionally, when making a determination as to the sufficiency of a complaint, initial pleadings must be construed liberally. United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 549 (5th Cir. 1890). This is especially true for a pro se Complaint under Haines v. Kerner et al., 404 U.S. 519




G.                              CONCLUSION/RELIEF

32.    The Decision appealed should be reversed in its entirety and with prejudice to stay the performance of the incumbent.  Other Order which should extend to annulment of December 16, 2011 Presidential Election, appointment of interim  management committee or the  elected First Deputy President to run the affairs of the presidency of the organization pending the determination of this Court.  Urgent process be commenced to re-run December 16, 2011 presidential election between the incumbent and Dr. Phillip Chukwuma Ofume. 

33.  Therefore,  from all angles the findings of the Probable Cause Presiding Judge were clearly erroneous and should be reversed because they (findings) have damaged the placidity of U.S. democracy and its global influence and also the findings are good for making dangerous laws for America/Americans.


Respectfully submitted,
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OFUME V. AAAA

_________________________
PhillipC.Ofume, Ph.D., Plaintiff
41 Gallivan Boulevard,
Dorchester, MA 02124
Tel. (781) 479-9027
E-mail: ofume.phillip@gmail.com,limptintinc@gmail.com

Mailing Address:
P. O. Box 2416
Lynn, MA 01903


SUPPORTED BY:

LIMPT, INC. & IMUN, INC. PROJECT (EDU., HUMAN RIGHTS, INSURANCE CORP., LAW REFORM & LITIGATION PROJECT - INTL. CHAPTER); INTL. COALITION FOR PRO SE/UNSIGNED  LAWYERS & GLOBAL CLASS ACTION PROJECT; DR. PHILLIP C. OFUME & ASSOCIATES;  INTL.  ENDOWMENT FOR DEMOCRACY; FOSTER/ADOPTIVE/ ORPHANAGE & CIVIL LIBERTIES OF THE NUCLEAR AND EXTENDED FAMILIES                                                                                                                               


Phillip C. Ofume, Ph.D.
 International Coordinator (Strategic  Policy/Practice                                                                                             of Politics of Unification and Unification Politics), U.S. Coordinator (                                                         LIMPT, INC. (HUMAN RIGHTS, LAW REFORM & LITIGATION                                                                         PROJECT - INTL. CHAPTER), Nominee for President of American
Association of Affirmation Action (AAAA – 2012)

Godson Etiebet, Ph.D.                                                                                                                                                                     Researcher on Policy/Practice of Good Government

Cynthia H. Taylor, Ph.D.                                                                                                                                                              International Collaboration Developer

Alh. (Dr.) Farruk Mohammad - Strategic  Policy Researcher

Tan Ochollu, D.Lit. - Expansion  Project Developer 

Reid MacDonald, Ph.D.   -  Strategic Program Developer

Jerome Tesfai, D. Min/Div   - Domestic Intervention Strategist

Francois Bourgeois & Pierre Bushel - International Human Rights                                                                                                  Watch and Democracy

AFRICAN CANADIAN HUMAN RIGHTS ASSOCIATION (ACHRA);

NETLINK INTERNATIONAL COMMUNICATION SYSTEM (NLICS);

INTERNATIONAL CAMPAIGN FOR NIGERIAN PEOPLE’S LIBERATION AND DEMOCRACY(ICN-PLD);

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OIL AND CHEMICAL WATCH INTERNATIONAL (OCWI);

AFRICAN CANADIAN IMMIGRANT SETTLEMENT ASSOCIATION (ACISA);

INTERNATIONAL NETWORK FOR PEACE AND DEVELOPMENT IN AFRIK (NIPAD).
                                                               
LIMPT, INC. (EDUCATION AND WORKFORCE PROJECT ET ALS)

MOVEMENT FOR EMANCIPATION OF THE NIGER DELTA (MEND)

INTERNATIONAL MOVEMENT FOR NEW FEDERAL UNION OF NIGERIA (IMUN, INC.

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