FILi5 2019

FF Tb P CUjppF/ CE OFF -r/-j E C uprtmt court of the Mnitrb epl

E. DRAKE, Petitioner

V.

U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, Respondents

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Eric Drake Pro-Se 10455 N. Central Expressway Suite 109 Dallas, Texas 75231 912-281-7100

April 19, 2019 1

QUESTIONS PRESENTED

Petitioner is a citizen of the United States of America. Pursuant to the U.S. Constitution and the Bill of Rights, he has rights to bring lawsuits, defend lawsuits, give evidence, have access to the courts, and the same protections as white citizens. This case represents a disturbing trend of both state and federal courts in denying pro se citizens their rights to bring lawsuits in forma pauperis. Several states have vexatious litigant laws to allegedly prevent pro se litigants from bringing lawsuits that have merit without first obtaining permission from an administrative law judge to review the case. Petitioner has been determined as a vexatious litigant in Travis County, Texas. As a result, the Petitioner has lost over a million dollars in compensation regarding several claims. After being wrong- fully declared vexatious by Travis County state court, attorney's who has signed written agreements to represent Drake in civil litigation have withdrawn from representing him. Other attorneys have refused to represent the Petitioner upon discovering he was wrongfully declared vexatious. In 2014, Petitioner had an accident were he was rear- ended. Liability was clearly the responsibility of other party. The accident resulted Drake having to undergo surgery on his lumbar spine. However, the judge who was appointed as the ad- 11 ministrative law judge in Tarrant County, Texas denied Drake the right to file his lawsuit. This action violated the Petitioner's right to have access to the courts; it was a violation of 42 Usc §1981, it violated Petitioners 14th Amendment rights of due process, as well as Drake's first amendment right of speech (to petition), and Petitioner's constitutional rights in general. Petitioner hired an attorney in another County in Texas to represent him, and that a judge granted permission to file Drake's lawsuit, but every attorney that the Petitioner hired withdrew after discovering he was declared vexatious. Unbe- lievably the state courts allowed those attorneys to withdraw, knowing that Petitioner was recovering from lumbar surgery. Petitioner has been representing himself for over 30- years. Defense attorneys of some of the largest law firm in the nation have a lost their cases against the Petitioner. Being embarrassed, defense attorneys have conspired with state and federal judges to declare the Petitioner as a vexatious litigant, thus preventing him from having access to the courts. State judges have misused this statute to wrongfully declare Drake as a vexatious litigant in light of evidence clearly pointing to the fact that his case had merit. In the Travis County litigation, an assistant attorney general for the state of Texas, Scot Graydon, declared the Petitioner as vexatious, with the assistance of Travis County 111 courts employees, including judges. The Travis County clerks office destroyed or misappropriated Drake's pleadings, a court employee who wasn't qualified to do so, appointed the judge who declared the Petitioner vexatious. The Supreme Court of Texas also weighed in by refusing to accept the Petitioner's pleadings when he attempted to overturn the wrongfully determined as vexatious. In addition, the Third Court of Appeals ignored evidence and assisted the attorney general's office in confirming Drake as vexatious. Finally, the assistant attorney general, Graydon, perjured himself under oath to allow the conviction to take place. There are no avenues for a person to seek help when the states Supreme Court refuses to accept his or her petitions. This Court will not consider a state court case without first having a denial by a state's Supreme Court. Since this action, the Petitioner has not been able to obtain any relief. And unless this Court acts, there will be continual irreparable harm caused to the Petitioner. Federal courts have also harmed Drake. if the Petitioner files any litigation in the entire state of Texas in a federal court, or even in another state, the litigation is oftentimes transferred to the Northern District of Texas where federal judges in that court will find any reason to dismiss Drake's cases—in fact oftentimes the reasons given by that court are completely frivo- iv

bus. See Drake v. Safeway. App. W, X, Y, 130a-151a. (Northern District of California magistrate was determined to transfer Drake's case to the Northern District of Texas, even though jurisdiction was proper in California). Both federal and state courts have conspired to dismiss the Petitioner's cases. Habitually, federal courts nationwide will make reference to a sanction order from the Eastern District of Texas, but will not afford a hearing of any kind to the Petitioner. Of course, a hearing would allow Drake to demonstrate that the prefiling injunction is frivolous. This occurred most recently in Drake v. Wamczyk, cause number: 3:19-cv-427. App. J, 79a-81a. The idea appears to prevent Drake from filing any lawsuits and to frustrate him to a point of his possibly taking some action, which could result in his arrest. The hatred for the Petitioner is so great that even federal judges would like to see him in prison rather than being free to litigate in the civil courts. Unfortunately, the case at bar is unimaginable for an alleged free country that promotes justice, freedom, and impartiality. The Petitioner has to obtain permission to file an in forma pauperis lawsuit in the Eastern District of Texas because of a recommendation by Magistrate Caroline Craven and an order signed by Judge Folsom. The Eastern District of Texas will not grant Drake a hearing to clear this frivolous order. App. 0, 100a-106a. Even so, at the center of this case before this V.

Honorable Court, is the denial of Petitioner's in forma pauperis and the refusal to accept Drake's original petition even after he presented the filing fees for the petition to the federal court. After the Eastern District of Texas denied the Petitioner's motion and affidavit in forma pauperis. Drake borrowed the money needed for the filing fees to file his original petition. See App. Zi, 173a-174a. Nevertheless, the Eastern District of Texas federal court still refused to accept the Petitioner's pleadings. The refusal was based on a recommendation made by Magistrate Don Bush that Drake must obtain permission to file any new litigation, pursuant to Drake v Penske case. But why would Judge Bush enter such a recommendation into the courts record when the Petitioner settled his case with Penske for more money than even experienced product liability lawyers said it was worth. There are no orders by Magistrate Bush or any Article Ill judge that would prevent Drake from filing new litigation or petitions if he has the filing fees. Even when a pro se litigant is successful in their litigation, they can nevertheless be plagued by the vexatious litigant statute or unjustified prefiling injunctions by federal court. The Petitioner filed an appeal to the Fifth Circuit court. However, the Fifth Circuit court of Appeals wrongfully dismissed Drake's appeal even after having evidence (medical reports) that prove he was severely injured in an auto accident. As this Court is fully aware, Petitioner had a collision with an 18-wheeler, and suffered cervical and lumbar injuries. Petitioner also suffered traumatic brain injury. The Petitioner requested a stay of the proceeding in the Fifth Circuit, because vi of his injuries and annexed medical notes and records. As a response, the Fifth Circuit denied the stay, denied requested seal of Drake's medical records, denied the request for an extension to file brief, and the clerk dismissed the Petitioner's case, claiming a failure to prosecute. However, the Petitioner did file his motion and affidavit in forma pauper/s with the Fifth Circuit. Many state and federal courts supports the use of the vexatious litigant statute. But for a man that defense attorneys find difficult to defeat, these lawyers are able to tie Drake's hands by wrongfully determining him as a vexatious litigant. In many Counties in Texas, criminal judges are appointed as administrative judges to evaluate the merits of civil cases for individuals who have been determined vexatious. Yet, Drake is more qualified than the average criminal judge to evaluate a civil personal injury matter. Petitioner has over twenty-years of experience in civil law and personal injury cases. Many criminal Judges simply do not understand civil law, and many times will wrongfully deny pro se litigants cases that have been determined as vexatious, even though the cases have merit. It is difficult enough for a pro se litigant to abide by the rules of courts like attorneys, but the vexatious litigant statute places an even greater responsibility on non-lawyers, that pro se must have a better winning record in the courts than anv licensed lawyer who has ever lived. vii

Moreover, there are small counties in this nation, that do not have an administrative law judge, and even the clerk's offices do not know what judge should hear and or rule on the pro se petitions who have been deemed as vexatious. These types of violation of U.S. citizen's rights cannot be allowed to continue, and this problem must be solved. There are no other courts in this nation that can resolve this matter but this Court. The conduct described herein cuts through the fabric of this nations flag of alleged freedom and rights for which it stands. It blots out the rights enshrined in the U.S. Constitution and Bill of Rights for U.S. citizens like the Petitioner who have been wrongfully deemed vexatious. Furthermore, it brings pro se litigants like Drake back to an era where he could be lynched for even complaining about such conduct. To deny a citizen the right to petition is to lynch his ability to obtain relief. For these judicial actors strangle the rights of ordinary citizens to accomplish their misguided deeds. If citizens are unable to bring his or her civil non-frivolous disputes and cases to a court of law, then how or in what manner shall these cases be settled? What is even more unsettling is that these agents of state and federal governments and judicial actors have committed actual crimes against the Petitioner with impunity. Thus, the Petitioner is seeking review by this Court of not only what occurred in the Fifth Circuit and district court, but also to abolish the vexatious liti2ant statute in the United States. If this Court fails to act, the state and federal courts complained of herein, and their judges will continue to forcibly rape citizens like Drake—in plain sight, of their constitutional and civil rights. This Court therefore must act to hear this case.

viii

The questions presented are:

Is it a violation of the First Amendment right of speech (right to petition), 42 USC §1981 (right to sue, give evidence, to be parties to suits), the 14th Amendment right (due process), and access to the courts, even if the person have been determined vexatious by a state court or when there is a federal prefiling injunction against the party, in particularly as in this case, if: a) U.S. citizen's are determined as vexatious by fraud and conspiracy, b) If U.S. citizen's civil cases are not being evaluated properly and thus his or her access to courts are wrongfully denied, restricting their ability to sue, c) If appellate courts have refused to accept U.S. citizens petitions because he or she has been wrongfully determined as a vexatious litigant. [Drake was prohibited from filing his petition in the Eastern District of Texas, Marshall, Texas division by a mere recommendation made by a magistrate judge, and not because of any orders signed by an Article III judge. Thus, the question is whether these actions against Drake violated his core rights as set forth herein].

Whether the vexatious litigant statutes should be outlawed as unconstitutional, offensive to due process, and fair play, and or a tool that is used by defense attorneys and judges to abuse non- lawyers, violate their rights, and win cases for the defense. Whether having criminal judges who are incompetent, un- trained, and or unknowledgeable about civil case, to review civil cases to determine if a pro se litigant if those cases have merit, is defeating the purpose of the vexatious statute.

Is it a violation of the First Amendment right to petition, as well as 42 Usc §1981 right to sue, to give evidence, and be parties to suits, due process of the 14th Amendment right of U.S. citizens, and to have access to the courts when courts wrongfully deny pro se litigants applications in forma pauperis even when the party qualifies for such relief to have access to the courts. Is it a violation of these aforementioned statutes when a federal court refuses to accept U.S. citizen petitions when he or she has the filing fees to pay to file their petition.

ix

PARTIES TO THE PROCEEDING

Petitioner, Eric Drake, an individual person, a citizen of the United States. Respondent, Harrison county is the County in which the Petitioner was injured while the state was repairing and or building a bridge. The City of Hallsville is the City in which the Petitioner was injured while the state was repairing and or building a bridge. East Texas Bridge Inc., is the contractor that was building the bridge for the state of Texas. Caroline M. Craven is the magistrate who filed the frivolous report and re- commendation to enjoin the Petitioner from filing any petitions in the Eastern District of Texas in forma pauperis, which acts as an prefiling injunction against the Petitioner. x

Thad Heartfield, Ron Clark, Marcia Crone, Amos L. Mazzant III, Robert W. Schroeder III, John Love, Zack Hawthorn, Roy Payne, K. Nicole Mitchell, Richard Schell, Christine Nowak, and Kimberly Johnson are judges in the Eastern District of Texas who have abused their positions, and their discretion. The Petitioner was seeking an prefiling injunction against their presiding over his cases in the future. Karen Sessions is the clerk of court who also abused her discretion by filing Petitioners petition in the wrong venue and the Court refused to transfer to the proper venue.

RULE 29.6 CORPORATE DISCLOSURE STATEMENT

Petitioner Eric Drake is an individual person, who is acting in this writ pro Se. TABLE OF CONTENTS

Questions Presented . i

Parties To The Proceeding...... ix

Corporate Disclosure Statement ...... x Tableof Content ...... xi

Table of Authorities ...... xvii

Index of Appendices ...... xii

DecisionsBelow ...... 1 Statement of Jurisdiction ...... 1

Pertinent Constitutional Provisions and Statutes ...... 1

Statementof the Case ...... 2 Factual Background ...... 2

Statutory Background ...... 7

Ill. Proceedings Below ...... 9

REASONS FOR GRANTING THE WRIT ...... 10

I. FIFTH CIRCUIT ERRED AND ABUSED ITS DISCRETION BY DISMISSING THE PETITIONERS APPEAL ...... 14

X1 A. Fifth Circuit was aware that Petitioner was severely injured in an accident with a semi-truck, but failed to stay the Petitioner appeal Fifth Circuit also apparently misappropriated the Petitioners motion forIFP ...... 14

II. THE DISTRICT COURT VIOLATED THE PETITIONER'S RIGHTS AND THE FIFTH CIRCUIT ERRED BY WRONGFULLY DISMISS- ING THE PETITIONER'S APPEAL ...... 18

A. Violation of Petitioner's First Amendment Rig of Free Speech 1. Federal Injunctions and States Vexatious Litigant Statute ...... 19

2. Judges Craven and Folsom Prefiling Injunction And its Effects On Federal Courts Nationwide ...... 21

Craven's Report and Recommendations ...... 22 Repercussions of Craven's Report I Folsom Injunction ...... 25

3. Free Speech (the right to petition) Violations ...... 29

4. Violation of 42 U.S.C. § 1981 and Access to the Courts ...... 33 5. The District Court Improperly Denied the Petitioners IFP ...... 35

CONCLUSION...... 39

INDEX OF APPENDICES

Appendix A Fifth Circuit Court of Appeals, Dismissal of Petitioner's Appeal (18-40949) Drake v Harrison et al.

November 23, 2018 ...... la

xii cA Appendix B Fifth Circuit Court of Appeals Denial of Petitioner's, Request for limited discovery, compel depositions, alternate jurisdiction, extension to file brief, exhibits under seal (18-40949) Drake v Harrison el at. November 21, 2018 ...... 2a-3a

Appendix C Petitioner's Request of Fifth Circuit to Extend Time to file brief (18-40949) Drake v Harrison et at. December 6, 2018 ...... 4a-16a

Appendix D Petitioner's Request Fifth Circuit to Reconsider and Response to Court Denial of extension to file brief, request to seal medial records, limited discovery, jurisdiction argument, and renewed request for ex- tension to file brief (18-40949) Drake v Harrison et at. December 6, 2018 ...... 17a-36a

Appendix E Petitioner's Motion to Proceed in Forma Pauperis annexed Clerk's Record to show that Drake's IFP was filed but that document have been substituted with another document (18-40949) Drake v Harrison et at. Filed November 11, 2018 ...... 37a-40a

Appendix F Petitioner's Notice Appeal and Motion Proceed in forma Pauperis (No. 2: 18-cv-00400) Harrison et at.

Filed on October 3, 2018 ...... 41a-53a

Appendix G District Court's Denial of Drake's Motion Proceed in Forma Pauperis (No. 2: 18-cv-00400) Harrison et at. Filed on October 4, 2018 ...... 54a-56a

xiii Appendix H Order of District Court's Denial of Petitioner's to file his petition (Cause No. 2: 18-cv-00400) Filed on September 19, 2018 ...... 57a-58a

Appendix I Petitioner's Amended Notice of Appeal (Cause No. 2:18-cv-00400) Filed on October 3, 2018 ...... 59a-78a

Appendix J Order from Northern District of Texas, Drake v. Wamczyk et at (Cause No. 3: 19-cv-427)

Filed on March 6, 2019 ...... 79a-81a

Appendix K Order from Western District of Texas, Drake v. State Farm Insurance et at (Cause No. 5: 18-cv-854)

Filed on August 22, 2018 ...... 82a-84a

Appendix L Order from Eastern District of Texas, Drake v. Travelers Indemnity et at (Cause No. 2:11 -cv-3 18), Drake v. Bank ofAmerica (No. 2:1 1-cv-5 15), and Drake v. Travelers Casualty Ins. Co., et at (No. 2:11-cv-516) This is the Report and Recommendation by Magistrate Caroline Craven of a frivolous injunction against Drake's filing lawsuits with IFPs. Filed on March 5, 2012 ...... 85a-95a

Appendix M Order of Recusal U.S. District Judge, Rodney Gilstrap, Drake v. Travelers Indemnify et at (No. 2:11-cv-318)

Filed on January 10, 2012 ...... 96a-97a

Appendix N Order of Referral from Judge Folsom to Caroline M. Craven. Drake v. Travelers Indemnity et at (No. 2:11- cv-318)

Filed on January 17, 2012 ...... 98a-99a

lxv Appendix 0 Memorandum Order by U.S. District Judge Folsom, Drake v. Travelers Indemnity et al (No. 2:11-cv-318), Drake v. Bank ofAmerica (No. 2: 1 1-cv-515), Drake v. Travelers Casualty et al (No. 2:11-cv-516)

Filed on March 16, 2012 ...... lOOa-106a

Appendix P Transfer of Judge Ward and Everingham cases Filed on October 3, 2011 ...... 107a-108a

Appendix Q Order from Northern District of Texas, Drake v. Nordstrom et al (Cause No. 3: 18-cv-00471) Dismissal for the Petitioner to file IFP

Filed on March 19, 2018 ...... 109a—li0a

Appendix R Excerpts Recommendation and Findings of Magistrate David Horan, Northern District of Texas, recommend- ing denial of Petitioner's IFP. (Note the magistrate did not make a determination that the lawsuit was frivolous) (Cause No. 3:18-cv-471)

Filed on March 1, 2018 ...... llla-115a

Appendix S Excerpts Settlement Agreement, Drake v. Bank of America et al (No. 4:15-cv-0 1248) Southern District Texas

Filed on September 2015 ...... 116a-119a

Appendix T Excerpts Settlement Agreement, Drake v. Alice Andrews el al (No. 06-04497)

Agreed on 2011 ...... 120a-124a

Appendix U Order from Southern District of Texas, Drake v. American Century Casualty Co., et al (No. H-16-467) Agreed on 2011 ...... 125a-127a

xv Appendix V Order from Southern District of Texas, Drake v. Nathan Franson (No. 07-mc-201)

Agreed on 2011 ...... 128a-129a

Appendix W 1st and 2nd Orders to Show Cause filed by the Northern District of California, Drake v. Safeway Inc., e. al (No. 19-cv-00048)

Filed on January 8, and February 7, 2019 ...... 130a-134a

Appendix X Excerpts from Mandamus filed in the Ninth Circuit Court of Appeals, Drake v. Safeway Inc., et al (Petition for Writ of Mandamus (No. 19-70370) Filed on February 13, 2019 ...... 135a-142a

Appendix V Order from Magistrate in the Northern District of California, Drake v. Safeway Inc., et a! (No. 19-70370) [note: reference to the Eastern District of Texas in- junction in this document]

Filed on March 11, 2019 ...... 143a-151a

Appendix Z Memorandum Report and Recommendation by Magistrate Judge Bush, Drake v. Penske et al (Dist. No. 4: 12-cv-264). Report from Pacer, Eastern District of Texas, Drake v. Penske Truck Leasing Co. (Lexis No. 2013 US Dist. Lexis 130851).

Filed on September 2012 ...... 152a-172a

Appendix Zi Money Order to pay for Petitioner's filing fees dated September 24, 2018. U.S. Money Order No. 25086224687 (Cause No. 2: 18-cv-00400) Drake v Harrison, et al Filed on October 3, 2018 ...... 173a-174a

xvi INDEX OF AUTHORITIES

Cases Page

Adkins v. E. I. DuPont de Nemours & Co.,

335 U.S. 331 ...... 36

BE & K Constr. Co.,

536 U.S. at 525 ...... 32

Bryant v. New York State Educ. Dep't.,

692 F.3d202, 218 (2d Cir. 2012) ...... 5

Bounds v. Smith,

430 U.S. 817 (1978) ...... 9

Bracy v. Gramley,

520 U. S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) ...... 36

Carey v. Piphus,

435 U.S. 247, 259 (1978) ...... 4

xvii Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949) ...... 18

Cruz v. Beto,

405 U.S. 319, 321 (1972) ...... 33

Drake v Wamczyk et al,

...... 5

Drake v Penske Truck Leasing Co.,

2013 U.S. Dist. LEXIS 130851...... 19

Fuentes v. Shevin,

407 U.S. 67,81(1972) ...... 5

Estelle v. Williams, 425 U.S. 501, 503 (1976) ...... 7

Escobedo v. Applebees. 787 F.3d 1226 ...... 39

xvii Ex parte Hull,

312 U.S. 546 (1941) .9

English-Sneaking Union v. Johnson,

353F.3d1013...... 16

Fla. Bar v. Went For It, Inc., 515 U.S. 618, 636 (1995) ...... 32

Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975) ...... 39

Ginelli v. Los Angeles Fire Dep't., 1994 U.S. App. LEXIS 34697 ...... 39

Harbury,

536 U.S. at 415 & n.12 ...... 32

Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997)...... 39

xviii Hicks v. Collins,

1995 U.S. App. LEXIS 42374 ...... 39

Hudson v. Palmer.

468 U.S. 517, 523 (1984) ...... 32

In re Winship.

397 U.S. 358, 364 (1970) ...... 7

Heffron v. International Soc. for Krishna Consciousness, Inc.,

452 U. S. 640, 649 (198 1) ...... 27

Jews for Jesus, 482 U. S., at 576 ...... 27

Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) ...... 6

Kentucky v. Whorton, 441 U.S. 786 (1979) ...... 7

xix (A Lewis v. Casey,

518 U.S. 343, 406 (1996) ...... 32

Lane v. Brown,

372U.S.477 ...... 36

Marshall v. Jerrico, Inc.,

446 U.S. 238, 242 (1980) ...... 5

Milisan v. Wilson, 1997 U.S. App. Lexis42081 ...... 16

Montanye v. Haymes.

427 U.S. 236,244 (1976) ...... 33

Neitzke v. Williams, 490 U.S. 319, 324 (1989) ...... 2

Nelson v. Adams.

529 U.S. 460 (2000) ...... 5

Octane Fitness, LLC v. ICON Health & Fitness, Inc-

134 S. Ct. 1749, 1757 (2014) ...... 32 Ortwem v. Schwab.

134 S. Ct. 1749, 1757 (2014) . 33

Prof l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56-57 (1993) ...... 32

Pell v. Procunier,

417 U.S. 817, 828 (1974) ...... 33

Reed Amar, Of Sovereignty and Federalism,

96 YALE L.J. 1425, 1485-86 (1987) ...... 31

Rippo v. Baker,

137 S. Ct. 905 ...... 36

Rodriguez v. United States,

395 U.S. 327 ...... 36

Sandstrom v. Montana,

442 U.S. 510, 520-24 (1979) ...... 7

xxi Sure-Tan, Inc. v. NLRB,

467 U.S. 883, 896-97 (1984) . 32

Sullivan v. Louisiana,

508 U.S. 275 (1993) ...... 7

Taylor v. Kentucky.

436 U.S. 478, 483-86 (1978) ...... 7

Troxel v. Granville,

530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) ...... 6

Tenenbaum v. Williams,

193 F.3d 581, 593 (2d Cir. 1999) ...... 6

Trinity Indus.. Inc. v. Myers & Assocs.. Ltd.,

516 U.S. 807, 133 L. Ed. 2d 17, 116 S. Ct. 52 (1995) ...... 22

Ulster County Court v. Allen,

442 U.S. 140, 156 (1979)...... 7

xxii Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989)...... 20'

Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976)...... 39

White v. Ragen,

324 U.S. 760 (1945)...... 9

Williams v. Kaiser,

323 U.S. 471 ...... 36

Williams v. Larkin,

421 U. S. 35,47,95 S. Ct. 1456,43L.Ed. 2d712 (1975) ...... 37

Williams v. Pennsylvania,

579 U. S.136 S. Ct. 1899, 195L. Ed. 2d 132, 141 (2016) ...... 37

Woodford v. Ngo.

548 U.S. 81, 122-23 (2006) ...... 32

xxiii Younger v. Gilmore, 404 U.S. 15 (197 1) ...... 9

CONSTITUTIONAL PROVISIONS U.S. Const. 14th Amend ...... XIV, 1,4, 11,25 U.S. First Amend ...... 1,2,8, 12, 15,25,29

STATUTES

42USC § 1981 ...... 1,4, 12, 19,27 2811S.C.1915(d) ...... 38 28U.S.C.1915(d) ...... Passim

28 U.S.C. § 1254(1) ...... 1 Texas Tort Claims Act (Act) ...... XXV

xxiv DECISIONS BELOW

There is no panel opinion from the Circuit Court of appeals, but the dismissal is and reproduced at App. la. The district court's opinion is not reported but is available and reproduced at App. 54a-58a.

STATEMENT OF JURISDICTION

The Fifth Circuit clerk dismissed the Petitioner's appeal on November 23, 2018. App. la. Petitioner filed a motion to reconsider the dismissal of his case, but the Fifth Circuit refused to file the motion and would not act on it because it was filed out of time. The Petitioner filed a motion of extension to file his brief. App. 4a-16a. Fifth Circuit denied all relief Petitioner sought. App. 2a-3a. District Court denied Petitioner's motion to proceed in forma pauperis. App. 54a-56a. District Court denied the Petitioner's right to file his petition, pursuant to the First Amendment right to petition, and 42 USC1981, and the 14th Amendment rights of due process, and access to the courts. App. 57a-58a. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL PROVISIONS AND STATUTES

The Fourteenth Amendment to the United States Constitution provides in pertinent part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United

1 States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The First Amendment to the United States Constitution provides in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

42 U.S.C. §1981 provides in pertinent part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens...

STATEMENT OF THE CASE

I. Factual Background

The federal in forma pauperis statute seeks "to ensure that indigent litigants have meaningful access to the federal courts." Neitzke v. Williams, 490 U.S. 319, 324 (1989). Petitioner is a U.S. citizen, and sought to file a civil lawsuit for damages relating to a personal injury claim that occurred in the Eastern District of Texas. Petitioner, a traveler on a national highway, at no fault of his own was injured by falling debris from a bridge under construction at FM 450 and U.S. Highway 1-20.

2 In 2011 two of the most impartial judges in the state of Texas, Judges Ward and Everingham retired from the bench. Drake was successful against FedEx, which very few attorneys have been successful against this corpora- tion because Judge Everingham treated pro se litigants equally to lawyers. Unlike Judges Ward and Everingham, U.S. district Judge Folsom would sign anything that Magistrate Caroline Craven would put before him, with no concern for the consequences of his actions. Racism and bias is tolerated in the small town mentality of the eastern district of Texas, Marshall division. Magistrate Craven filed a frivolous recommendation based on false, and misleading information. Craven's report recommended that Drake had to obtain permission to file an IFP in that court. App. L, 85a-95a. However, the Eastern District of Texas has never determined that any pleadings that Drake has filed were not frivolous since Judge Folsom signed the March 15, 2012 injunctive order. When judges impede citizen's rights to have access to the courts, it seriously obstructs the very act of "freedom of speech," and deprives citizens of their rights to access to the courts. Courts of this nature understand that this Court, the U.S. Supreme Court, hears very few cases out of the thousands that are filed annually. Thus, the probability that these types of violations of citizen's rights are corrected is slim at best. Hence, it is urgent that this Court hears this writ. There are no orders that would prevent Petitioner from filing a lawsuit in the eastern district of Texas courts if he pays the filing fees. Yet, this is at the heart of this writ. Not only did the court disrupt Drake's access to the courts, but they also deprived him of the ability to file his petitions, sum- onses, and other documents even when he had the filing fees in the form of a

3 U.S. postal money order, which violated his free speech (to petition), his 14th Amend-ment due process rights, his right to sue, give evidence, and be parties to suits under 42 Usc §1981, which prohibited Drake's access to the courts—and basically his constitutional rights as a citizen were violated.

A. Due Process Limits On Personal Jurisdiction

Due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Thus, the required elements of due process are those that "minimize substantively unfair or mistaken deprivations" by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.2 The core of these requirements is notice and a hearing before an impartial tribunal. The objective of the federal judges in the Eastern District of Texas was to infringe on Drake's due process rights and to prevent him from filing legitimate civil cases. It was a way to restrict the rights of those who are less likely able to fight an unfair judicial system. These restrictions comes in the form of state "vexatious litigant" statutes or federal prefiling injunctions. Due process allows and requires an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented his or herself in a civil suit or by counsel in a criminal matter.

'Carey v. Piphus, 435 U.S. 247, 259 (1978). "[P]rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases." Mathews v. Eldridge, 424 U.S. 319, 344 (1976).

FA The order that Judge Folsom signed by the recommendations contained in Craven's report prefiling injunction, wrongfully enjoining Petitioner from filing any new litigation with an IFP (which attacked his rights as pled herein), based on the fact that Drake is underprivileged, acting pro se, and an African American. More importantly, the eastern district of Texas failed to notice Drake of that the court was considering filing a prefiling injunction and set a hearing so that Drake could be heard. The court took this action to ensure that no evidence would be entered into the courts record, opposing the prefiling order. Drake was convicted without due process. Even when Petitioner attempted to set a hearing on the prefiling order, the eastern district of Texas refused to schedule a hearing as to contin- ually harm Drake. Additionally, Magistrate Craven's report and recommen- dation was composed with untrue accusations, misleading statements, and falsities. Most recently, in the matter of Drake v Wamczyk et a!, 3: 19-cv- 427, the Petitioner requested the Northern District of Texas to file into the courts record the alleged order that Judge Craven signed in the eastern district of Texas, which stated he could not file petitions in the Northern District of Texas in forma pauperis. Yet, other federal courts in Texas are using Folsom prefiling order to also violate Drake's rights to file forma pauperis. App. J, 79a-84a. See App. L, 85a-95a, and App. 0, 100a-106a.

'Fuentes v. Shevin, 407 U.S. 67, 81(1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one's interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 529 U.S. 460 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

5 The Northern District of Texas ignored the Petitioner's request for their magistrate to file the Folsom's prefiling order into the courts record, because the order does not state that Drake cannot file new litigation in any other district in forma pauperis without permission, except the Eastern District, and only if Drake is filing his litigation with an IFP. These are serious violations of the Petitioner's rights, which if allowed to continue will deface the very concept of blind justice in America. Factually, these core rights that the courts complained of herein has trotted on the word justice, and have ripped the eyes out of the statues of Contemplation of Justice and Authority of Law. For if these acts are acceptable, justice is truly blind. Drake also requested an evidentiary hearing, but the Northern District overruled that request, which another due process violation.3 In other words, the Texas federal courts, similar to Travis County, Texas courts are not allowing the Petitioner any means to reverse its biased and frivolous prefihing orders, which is an equal protection violations. A fundamental requirement of due process in any proceeding, which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. In addition, notice

"A procedural due process claim is composed of two elements: (1) the existence of a property or liberty interest that was deprived and (2) deprivation of that interest without due process." Bryant v. New York State Educ. Dep't, 692 F.3d 202, 218 (2d Cir. 2012) (citation omitted). Parents have a fundamental liberty interest in the "care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000); Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999). must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest. Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it. Petitioner never received any notice prior to Judges Folsom and Craven filing and signing the prefihing injunction against the Petitioner, and Judge Folsom only echoed Craven's due process violations. The Eastern District of Texas has refused to schedule a hearing to address the merits of Folsom injunction. However, even if a hearing were conduct-ed, the eastern district would ignore any evidence to maintain the order.

II. Statutory Background

The Fifth and Fourteenth Amendments of the United States Constitution contain Due Process Clauses .4 Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. This Court interprets the clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, (as referenced in

'In re Winship, 397 U.S. 358, 364 (1970). See Estelle v. Williams, 425 U.S. 501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County Court v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt). On the interrelationship of the reasonable doubt burden and defendant's entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978), and Kentucky v. Whorton, 441 U.S. 786 (1979).

7 the eastern district court of fabricating orders that does not exist and refusing to allow Drake to schedule a hearing to reverse orders obtained by fraud). The First Amendment (Amendment I) to the U. S. Constitution pre- vents the government from making laws which respect an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, and the right to petition the government for redress of grievances. The case at bar focuses on "the right to petition," pursuant to the First Amendment, and the right to sue, give evidence pursuant to 42 USC §1981, due process claims, and access to courts. The Petition Clause protects the right "to petition the government for a redress of grievances." This includes the right to communicate with government officials, lobbying government officials and petitioning the courts by filing lawsuits with a legal basis. In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), this Court stated that the right to petition encompass "the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition." According to this Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain.

[J Those rights not only protects demands for "a redress of grievances" but also demands for government action. The petition clause includes according to this Court the opportunity to institute non-frivolous lawsuits. In Borough of Duryea v. Guarnieri (2011), this Court stated regarding the Free Speech Clause and the Petition Clause: "The right to petition is an expression directed to the government seeking redress of a grievance."

III. Proceedings Below

Petitioner filed suit in the U.S. District Court for the Eastern District of Texas, because: 1). this is the state and division, and jurisdiction where the injury occurred and, 2). where most of all parties exist and resides. Pursuant to a standing prefihing order signed by U.S. Judge Folsom, Petitioner had to request permission if he files any pleadings in the Eastern District of Texas by IFP only. Thus, Petitioner filed his request to permit the filing of his personal injury claim on September 19, 2018 in forma pauperis. The District Court denied the petition on the same day. App. G, 54a-56a. Petitioner without delay obtained the filing fees from a friend to pay for the filing of his petition because the statute of limitations was about to expire.

5 E parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). Prisoners must have reasonable access to a law library or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978). Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal claim. But the federal court in Marshall, Texas nevertheless refused to accept the Petitioner's pleadings citing a mere recommendation by Magistrate Don Bush, a previous magistrate judge, but no order exists. App. H, App. H, 57a- 58a. When the Petitioner objected to the conduct of the clerk's office, he was asked to leave the courthouse. Petitioner filed a notice of appeal to the Fifth Circuit on October 10, 2018, and a leave to proceed in forma pauperis with the district court. Petitioner also filed an amended notice of appeal on October 10, 2018. The district court denied the Petitioners motion to proceed in forma pauperis, and the Petitioner filed a motion to proceed in forma pauperis in the Fifth Circuit on November 11, 2018. App. E, 37a-40a. If there is no record of the pleading it's because it's not an uncommon occurrence in civil litigation for clerk's offices in federal and state courts to destroy pro se litigant's pleadings.

REASONS FOR GRANTING THE WRIT

Review of this important case should be granted.

The basic principles that the Petitioner is arguing in this writ are those sanctioned and embodied in our U.S. Constitution and Bill of Rights. These inalienable rights that were drafted by our forefathers were purposely meant to be timeless, which measure no man by his wealth as a prerequisite to file a petition in our courts. For a person of color in America, or any citizen of this nation to be prohibited from filing a petition in a federal court when he or she has the filing fees and all essential paperwork in 2018, viciously strips away every word in the laws that govern this nation, as well as our judicial

10 body, and the "privileges and immunities" that all citizens are afforded. This Court has met head on historical and landmark cases, such as: Clay v. United States, Brown v. Board of Education, Bailey v. Patterson, Jones v. Mayer Co., Batson v. Kentucky, Corfield v. Coryell and many other decisions encompassing discrimination, segregation, and basic rights for all citizens in America. The aforementioned cases will be nullified if this Court fails to review this case. None of these landmark cases would have been reviewable without the right to petition. To by-pass this case would be to by- pass every important decision that this Court has made regarding the rights of American citizens in its nearly 230-years of existence. This case centers on the very essence of how the American jurisprudence is purportedly fairer than courts in other countries. But the legal safeguards that were written by our forefathers, and refined by case law, would have no impact on the human factor of racism that unfortunately infiltrates incalculable decisions in our judicial courts. If a person of color is unlawfully prohibited from filing a petition in a federal court in 2018, then can we not see the elements of enforced segregation emerging back into our society? Factually, in this century, there are very few courts in America, which are truly nonbiased and impartial to people of color. Moreover, though there are some avenues to have cases reviewed by appellate courts, the far majority of appeals courts lump pro se litigants and prisoner cases together as being of lesser note worthiness to give it more than a quick scan. And then, there are the appellate courts like the Texas supreme court that defy our constitution by prohibiting pro se litigants, like Drake from even filing his petitions in its court. Though this

11 type of conduct was thought to be eradicated in 2019, it lives on through the hatred of individuals who represent our state and federal governments. If this Court does not hear this matter, it will only codify and reinforce with a stamp of approval, the type of conduct described herein which was carried out by sworn alleged officers of the court. And this will only allow continual abuse of pro se litigants by not only federal courts in Texas, but also federal and state courts nationwide.

Further Reasons For This Court To Review This Important Case:

The Petitioner did not have an opportunity to be heard, give evidence, or put on witnesses prior to the eastern district of Texas ordering a pre-filing order/injunction against the Petitioner; 12

Petitioner had no notice of the pre-filing order/injunction prior to the eastern district of Texas court ruling; 12

The eastern district of Texas injunction wasn't narrowly tailored;

The eastern district court was extremely biased against Drake and failed to take lesser steps, if the court felt that restrictions were warranted;

Pre-filing injunction was obtained by the judge's presenting false and misleading evidence and statements against Drake;

'2Notice and an opportunity to be heard must be given to a litigant before a pre-filing order is entered. This is a core requirement of due process. Mo/ski, 500 F.3d at 1058 (citing De Long, 912 F.2d at 1147); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)

12 The same cases that eastern district of Texas felt deemed frivolous, which supported its frivolous prefiling order, the Petitioner settled those cases in another district court with an impartial judge;

The eastern district of Texas pre-filing order/injunction was filed to create a displacement of the Petitioner's rights.

In Drake's notice of appeal, he argued and set forth violations of his rights by the district court including: Violated the Petitioners constitutional and civil rights and prevented the Petitioner from filing suit against the above Respondents which was purposely driven; Violated the Petitioners rights to access to the courts; Violated the Petitioners due process rights; Violated the Petitioners 14th Amendment Rights; Violated the Petitioners First Amendment Rights of Speech; Violated 42 USC §1981.

Despite all of the progress that has been made regarding the struggles of African Americans and people of color in general in America, and the advancement of human rights for all Americans, this case vacates the idea of freedom, notice, due process, inalienable rights and impartiality in the very heart of the promises preserved in the U.S. Constitution and Bill of Rights. In effect, these irreplaceable fundamental laws, and guaranteed basic rights have been systematically voided for certain citizens like the Petitioner.

13 The conduct described herein not only dilutes the integrity of this nation's judicial courts, but it also eradicates any blind justice, truth, and honor for nonwhites in the judicial system. The actions described herein of the district court, Fifth Circuit, and the Travis County, Texas courts cannot be acceptable or tolerable in a humane society that relies on the bridge of our laws to pass judgment on others. If there is no law, there cannot be any justice. If there is no justice, and no laws for all the people—how shall we govern our nation? The type of conduct described herein was America's past, but it cannot be permitted to be America's present or its future. Thus, Drake respectfully requests for this Honorable Court to review his Writ of Certiorari.

I. Fifth Circuit erred and abused its discretion by dismissing the Petitioners Appeal.

A. Fifth Circuit was aware that the Petitioner was severely injured in an accident with a semi-truck, but failed to stay or, continue the Petitioner's appeal. Fifth Circuit also apparently misappropriated the Petitioners motion for IFP.

Pursuant to Fifth Circuit Rule 42.3, that court may dismiss an appeal for want of prosecution. Blacks legal dictionary describes "want of prosecution" in the following manner: A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial, or failing to take certain specified actions of which the party had notice. Once signed, the want of prosecution dismissal order has the effect of closing the case. It constitutes a final order disposing of all claims. The dismissal for want of prosecution is without prejudice.

14 But why would any impartial appellate court dismiss a case for want of prosecution when the court has proof that the Appellant's sustained serious injuries in a collision. App. C, 4a-16a. It is rather obvious that the Fifth Circuit would not have ruled in the same, but for the exception that he is acting pro Se. The actions against the Petitioner are strictly on account of his race, African American, were justice is not the motivation or goal in the average civil or criminal court in America. The rulings that the Fifth Circuit made against Drake were an abuse of discretion. Especially in the case at bar because there were no Appellees or Respondents to be prejudice if the Fifth Circuit court allowed a reasonable period of time for the Petitioner to recover from the injuries he sustained. It should speak volumes to this Court that the Fifth Circuit dismissed the Petitioners appeal as a matter of form, and refused to grant him any relief for the harsh violations of his rights carried out by the district court in Marshall, Texas. App. B, 2a-3a. The Fifth Circuit also alleged that the Petitioner failed to file his financial affidavit, however, the Petitioner did file his declaration with the Circuit Court. This document was filed with Drake's November 11, 2018 motions, but was removed from the courts docket mysteriously. In fact, on page 1 (one) of Drake's "Opposition to Courts Dismissal," second para- graph, the Petitioner cautions the Fifth Circuit that he did file a financial statement with the court. The Petitioner repeated the same assertion on page 2 (two), first paragraph of his opposition to the Circuit Courts dismissal. If an appellate court does not receive an IFP, the Fifth Circuit should

15 have requested the full filing fees prior to dismissing the appeal. Milisap v. Wilson, 1997 U.S. App. Lexis 42081. The Fifth Circuit ignored Petitioner's medical notes and records. And under the given circumstance, the Fifth Circuit abused its discretion in dismissing the Petitioners case. See Drake Reconsider, App. D, 17a-36a. Petitioner also requested the Fifth Circuit to grant limited discovery regarding the prefiling injunction order recommended by Judge Craven and signed by Judge Folsom. However, the Fifth Circuit denied all requests made by the Petitioner. Thus, the Petitioner is requesting that this Court, to order the Fifth Circuit, to grant the Petitioner limited discovery regarding any injunctions, or sanctions that are prefiling orders that were signed by any federal or state judge in the state of Texas. Petitioner would also request to conduct depositions of all and any parties pertaining to prefiling injunctions of the Petitioner. English-Speaking Union v. Johnson, 353 F.3d 1013. In the entire state of Texas, there is only one judge who would be reasonably impartial to the Petitioner, the Honorable Keith Ellison, presiding in the Southern District of Texas. Starting with the 2004 wrongful declaring the Petitioner as a vexatious litigant to the 2014 case where an assistant attorney general perjured himself under oath to declare Drake as a vexatious litigant, as well as Judges Folsom and Craven's prefiling injunction, and all other cases involving the vexatious litigant statute or an injunction which is meant to impede the Petitioner's access to the courts and filing lawsuits, the

16 Petitioner request the Court to order that these cases be retried or tried only before the Honorable Keith Ellison regardless of the statutes of limitations, and regardless if the case was heard or dismissed in state or federal court. Petitioner has sustained severe economic damages and mental anguish because of the conduct of the officers of the courts complained of, including state and federal judges, and court employees named herein. The Petitioner filed on December 6, 2018, a motion for recon- sideration of the dismissal of his appeal with several other important motions Drake filed with the Fifth Circuit. A motion to reconsider is the equivalent of a Rule 60 motion. Arguably, the motion was timely. However, the decision of the Fifth Circuit to deny the relief that the Petitioner was seeking was error, and a serious but calculated and deliberate abuse of discretion. The Fifth Circuit court should have granted the Petitioner's stay and continuance because the court had evidence that Drake was involved in a serious automobile accident. The court fully understood that the Petitioner would suffer irreparable injury absent a stay because he was not medically able to defend himself. Further, the denial of the stay caused Petitioner to suffer substantial injury, (mental anguish and lost of his claim because the statute of limitations had run), and it would have been in public interest and confidence in our judicial system for the court to grant Drake some relief. Unquestionably, the Fifth Circuit was fully aware of the probable irreparable harm to the Petitioner by its refusal to grant the stay. The medical notes and other medical evidence filed into the circuit courts record, and the declara- tion of Drake were the principal prerequisites for the issuance of his request- ed stay and continuance but the Fifth Circuit chose to deny his request.

17 II. The District Court violated the Petitioner's rights and the Fifth Circuit Erred By Wrongfully Dismissing the Petitioner's Appeal.

As a U.S. citizen, the Petitioner has rights pursuant to the U.S. Constitution and the laws of this nation. On September 19, 2018, the Petitioner filed a request for permission to file his personal injury lawsuit with the eastern district of Texas. However, the court denied the permission immediately on the same day, September 19, 2018.6 App. H, 57a-58a. For the reason that the statute of limitations was approaching, the Petitioner borrowed money from a friend for the filing fees. On September 24, 2018, Drake appeared again at the east Texas federal court with the filing fees in the form of a U.S. postal money order, number: 25086224687, his original petition, summonses, and cover sheet to timely file his lawsuit. See App. Zi, 173a-174a. Yet, the eastern district of Texas court refused to accept Drake's original petition citing a mere suggestion made by Magistrate Don Bush that Petitioner should obtain permission prior to filing his lawsuits in that district. This refusal violated the Petitioner's 14th Amendment right of due process rights, and Drake's First Amendment rights to petition, and violated 42 USC § 1981 right to sue, and give evidence, and Petitioner's access to the courts.

60rders denying applications to proceed IFP are appealable as final decisions for reasons similar to those which prompted the Supreme Court to hold that the order in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949) was appealable. An order denying IFP status finally decides an important issue which is collateral to the merits of the case. It is an order which is "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, supra, at 546, 69 S. Ct. at 1226. More importantly, it is an order the review of which cannot be deferred until the whole case is decided. Denial of IFP, if erroneous, tends to close the door of the courthouse to the true pauper, forcing him to forfeit his day in court. More importantly, Judge Bush in the Penske case said, "Plaintiff did not file this suit in the Eastern District. It was removed from Denton County, and Plaintiff has not sought in forma pauperis status. Therefore, he was not in violation of Judge Folsoms order as it is narrowly read." Judge Bush dismissed Drake's claim against Penske with prejudice. However, Petitioner settled his claim against Penske. Drake v. Penske Truck Leasing Co., 2013 U.S. Dist. LEXIS 130851. And even though Drake settled with Penske, Bush suggested: "further suits filed by this Plaintiff in this district whether removed or not, in forma pauperis or not, be prohibited unless plaintiff seeks permission from the chief judge of this district." App. Z, 152a-172a.

A. Violation of Petitioner's First Amendment Right of Free Speech 1. Prefihing Injunctions and States Vexatious Litigant Statute.

Many states, including Texas have a vexatious litigant statute. In 2014 an assistant attorney general by the name of Scot Graydon filed a motion to declare the Petitioner as a vexatious litigant. Mr. Graydon perjured himself under oath; a state court employee by the name of Warren Lloyd Vavra portrayed himself as a judge, when he wasn't. Travis County clerk's office destroyed the Petitioner's pleadings, the Third Circuit Court of Appeals ignored evidence, and the Supreme Court of Texas refused to accept the Petitioner's pleadings. The conspiracies and criminal actions by these state actors violated the Petitioner's free speech by illegally determining him as a vexatious litigant. The Petitioner is asking this Court to outlaw this statute. For any value that might come from this statute, it is not out weighed by the damage it does to citizens of this nation who represent themselves in a court of law. The statute strips citizens of their right to access to the courts, and

19 silence their freedom of speech, violating the 1St Amendment, making due process nonexistent. Supposedly after being determined as a vexatious litigant a "judge" would review the case to certify that the case has merit, or that the party filing the case is likely to succeed in the case. Yet, what person in our legal system could have such a foresight? None! If this was a possibility, lawyers would not take cases and pour thousands of dollars into the case—just to loose the case. But regardless how sound the case might be, if a pro se litigant took a case that had merit and lost, he could be determined as a vexatious litigant. The statute also notes in Section 11.051, that if a non- lawyer commenced, prosecuted, or maintained in propria persona at least five litigations that they have not been successful—they could be determined as vexatious. Attorney's files thousands of cases that they are not successful. Many of the judges who are appointed as the "administrative judge" are totally incompetent to review civil cases because they are criminal judges. Judge Salvant denied the Petitioner request to file a lawsuit in a civil case that the defendant was liable for the accident. Drake v Choi. The vexatious litigant statute attacks the pro se litigants due process in civil cases, as well as his or her access to the courts, and freedom of speech. Any injunction on U.S. citizens meant to restrict their rights to access to the courts is also a restriction on that citizens first amendment rights to petition. "[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989). But the State's difficulties with its restr-

20 iction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the whole point of the exercise is to prohibit the filing of petitions, to sue, and give evidence. This is an excellent example of how imperfect and callous our judicial system is in preventing U.S. citizens from seeking justice and compensation in the judicial courts.

2. Article III Judge Folsom and Magistrate Craven's Prefihing Injunction, And Its Effects On Federal Courts Nationwide.

Magistrate Caroline Craven who is presently presiding in the eastern district of Texas filed an recommendation in her March 5, 2012 report that Drake should not be allowed to file any new cases under IFP unless its reviewed by that court. App. L, 85a-95a. Before reviewing the Craven's recommendation, Drake wish to point out to the Court how she was assigned to Drake's case. For some unknown reason, Article III Judge Rodney Gil- strap recused himself from Drake's case, which is difficult to accomplish of a federal judge. App. M, 96a-97a. Thereafter, Judges Ward and Magistrate Everingham retired, App. P, 107a-108a. But for some unknown reasons Drake's case was referred to Judge Folsom, and Folsom referred the Petitioner's case to Magistrate Craven, although, in the Marshall division where Petitioner's case was pending, Magistrate Roy Payne was presiding. Judge Payne assumed office December 28, 2011. Craven was over 70 miles away from the Marshall division court. Therefore, why would Judge Craven be appointed to the Petitioner's case, unless it was an conspired effort to

21 harm Drake, and to create a frivolous prefilmg injunction to forbid Drake from having access to the court.

CRAVEN'S REPORT AND RECOMMENDATIONS:

Magistrate Caroline Craven's report and recommendations can be viewed in its entirety. App. L, 85a-95a. On page 87a, Craven provides her summary of three lawsuits that the Petitioner filed. On page 88a, Craven concedes that Drake alleged these three cases were diverse and the amount of damages he seeks was in excess of $75,000.00. Craven assert that the Petitioner failed to make a showing of jurisdiction. However, this Court has ruled that the "monetary amount requirement would be deemed satisfied absent proof to a legal certainty that the requisite amount did not exist." Additionally, this Court ruled as long as the plaintiff had a good faith belief in the damage amount at the institution of the suit, the court's jurisdiction should be maintained even if it is later shown to a legal certainty that the jurisdictional amount did not exist. It is obvious that Craven role was to find any reason to dismiss the Petitioner's lawsuit where impartiality wasn't a consideration. Trinity Indus., Inc. v. Myers & Assocs., Ltd., 41 F.3d 229, 230 (5th Cir.), cert. denied, 516 U.S. 807, 133 L. Ed. 2d 17, 116 S. Ct. 52(1995). On page 88a, the court reveals its bias towards Drake, "that he is well known." Craven mention a few cases where the Petitioner failed to respond, but in regards to voluntarily dismissing a case, attorneys do this all the time.

22 On page 91 a, Craven try to support her frivolous recommendation by statements, which she knew or should have known, were false and misleading. The case of Alice Andrews was litigated in state court for over six years. What Craven's report does not reveal is that the Petitioner settled that case. See App. T, 120a-124a. Further, state judge, Martin Hoffman, presiding in the 68th Judicial District (Dallas County) declared Drake as a vexatious litigant in light of the fact that liability wasn't an issue. Yet, Craven report does not reveal that the Petitioner reversed Hoffman's determining Drake as a vexatious litigant in the appeals courts. Craven state in her report on page 92a, last line, that the Petitioner was trying to avoid the requirements of the vexatious litigant order by filing in small claims court. The statute does not include small claims courts. And yes, the Petitioner was trying to avoid the incredible bias and unfairness of the statute, which not even the best of attorneys in this nation, could maintain and practice law. Thus, Craven has set out alleged facts, which are purposely mislead- ing and were meant to harm the Petitioner. Drake disagree that his pleadings failed to invoke federal jurisdiction as Craven claims on page 93a. On page 94a Craven claims that the statute of limitations had expired in the automo- bile personal injury accidents cases filed, which again is an untrue statement. These auto personal injury cases involved UMIUIIvil. The statutes of limita- tions run 4-years from the time the insurance company deny the claim. Thus, the cases were within the statute of limitations. Regarding Plaintiffs case against BOA, (Bank of America), Craven considered that case also as frivolous regarding the federal court jurisdiction and dismissed the case.

23 Plaintiff refiled the same case against BOA in the Southern District of Texas. But the Petitioner drew the only impartial judge towards him in the entire state of Texas, the Honorable Keith Ellison. Along with BOA, the Petitioner filed suit against other large financial companies such as American Express, and Citibank. Petitioner settled with all of the defendants. See App. S, 116a-119a. As far as the Travelers case that Craven found also to be frivolous, the FBI is presently investigating the case for Travelers fraud against the Petitioner. However, the Eastern District of Texas does not wish for Drake to be successful in any of his litigation, on account of his race, black, and apparently because he shouldn't be smart enough to navigate through the complex federal courts. When courts assume facts, but do not allow dis- covery, the results is usually in error. And because of Craven's errors, her misleading alleged facts, and her purposely made false claims that she should have known were false, she recommended the frivolous prefihing injunction as seen on page 94a: "Eric Drake is prohibited from proceeding informa pauperis with any

civil action in this court - whether he filed it in this court, he filed it in another court and it was removed to this court, or he filed in another

federal court and it was transferred to this court - unless he first obtains from a district judge of this court leave to proceed in forma pauperis in this court. If a civil action is removed or transferred to this court, the case will be subject to summary dismissal unless, within 30 days of the date of removal or transfer, Drake seeks, in writing, leave from a district judge of this court to proceed in this court."

The order that Article III judge Folsom signed, as a recommendation by Magistrate Craven has many infractions of the Petitioner's rights. Folsom order. See App. 0, 100a-106a. However, the order prohibits Petitioner from

24 appearing in the Eastern District of Texas, in forma pauperis, even if another court grants the Petitioner's IFP. This is a means to deny Drake access to the courts, even if another court that is not biased against Drake grants the IFP the eastern district will deny it, App. 0, 105a. It is a means to deny Drake's IFPs, and thus a clear violation of Drake's First Amendment right to petition, 42 Usc §1981, due process of the 14th Amendment, and having access to the courts. Because of the extreme bias of the Eastern District of Texas against the Petitioner, there would be no possibility of Drake obtaining an impartial hearing or trial in a civil or criminal matter. This cannot be illustrated better than the case at bar, Drake v. Harrison County.

App. G, 54a-56a., and App. H, 57a-58a. The order also reads that if one of Drake's cases are removed, or transferred to the Eastern District of Texas, the case will be summary dismissed unless the Petitioner obtains permission within 30 days. Based on the conduct in Drake v. Harrison County, the eastern district of Texas court most likely would not grant the permission and the case would be dismissed. This was another means to violate the Petitioner's right to petition, right to sue, and restrict his access to the courts because of his poverty.

REPERCUSSIONS OF CRAVEN REPORT/FOLSOM PREFILING ORDER:

As a result of the frivolous, but damaging prefiling injunction signed by U.S. Judge Folsom, which was recommended by Magistrate Carven, other federal and state courts have taken that order to likewise deny the Petitioner access to the courts in forma pauperis. Similar actions has occurred after an assistant attorney general by the name of Scot Graydon filed a motion to declare the Petitioner as a vexatious litigant in Travis County, Texas and conspired with others to carry it out. The order signed by Folsom clearly set out that if the Petitioner files any litigant in the Eastern District of Texas, or the case is removed, or transfers, that Drake would have to obtain permission. In fact, Petitioner's lawsuit in Drake v. Wamczyk, App. J, 79a-81a, was dismissed based on the order Folsom signed but the Wamczyk case was originally filed in the Southern District of Texas, but transferred to the Northern District of Texas for disposal. The Northern District of Texas claims that they are just following the order by Craven, which clearly state that the prefihing injunction is would only affect petitions filed the Eastern District of Texas, and only if those petitions are filed with an IFP. Petitioner filed another case, Drake v State Farm, App. K, 82a-84a, which Petitioner's IFP was denied, and the case was dismissed based on the order of Eastern District of Texas.

In Drake v. Nordstrom, App. Q, 109a-1 lOa, the Petitioner's IFP was denied and case dismissed based on the order of the Eastern District of Texas. Excerpts of the magistrate's recommendations, App. R, lila—il 5a. Other courts have also used the frivolous prefiling order as far out as California, Drake v. Safeway, App. Y, 143a-151a, district courts have conspired across the nation to try and transfer any cases back to the Northern District of Texas, where it will be dismissed, such as the actions shown in App. W, 130a-134a, Excerpts App. X, 135a-142a. Additional cases where the courts denied wrongfully Petitioner's IFP, Drake v. Amer. Cent. Gas. Co., App. 125a-127a, and App. Drake v. Nathan Franson, V. 128a-129a.

26 It is "self-evident" that an indeterminate prohibition carries with it "[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation." Jews for Jesus, 482 U. S., at 576; see Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981) (warning of the "more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority"). If attorneys had to practice law under the same guidelines as a pro se litigant pursuant to the vexatious litigant statute, or a prefihing order refer- enced herein that Judge Folsom signed, all attorneys in the United States would be determined as vexatious litigants. State and federal judges are able to run rampant with these prefiling injunctions that block access to our courts, therefore this Court must act to prevent this conduct from continuing, because there are no even-handed ways in which these cases are heard, and they are not guided by objective or even workable standards. Cases like the one before this Court and or similar cases "present[] this Court with a particularly difficult reconciliation: the accommodation of the right of citizens to engage in litigation to settle their disputes and the authority of a court to control pro se litigants. Courts in this nation have many ways to control those that come before it without violating non- lawyers rights, condemning them as vexatious litigants does or frivolous orders such as noted in App. 0, 100a-106a. Those same methods of control are those that attorneys have to face before a court of law. If this Court blindly accept this misguided invitation to sanction a pro se litigant under the name of "vexatious litigant" which is motivated by animosity toward those who represent themselves, in the name of a super-

27 ficial claim of controlling the courts and economy by not wasting funds of the court, the Court redeploys the same dangerous logic, underlying the acts of a state own government regime, that merely replaces one "gravely wrong" with another that is used to attack U.S. citizens who prefer to represent themselves in this nations courts. In Drake v. Niello, 2:17-cv-1036, after Niello's motion to dismiss was denied, Niello filed a judgment on the pleadings, which was frivolous, but then out of desperation Niello filed also a motion to declare Drake vexatious—it's a defense attorney's fall-back when all other dispositive motions fail. In the case at bar, our judicial system have allowed judges to monitor and correct supposedly those who are not attorneys, by subjecting them to be labeled as vexatious litigants, or by filing prefihing injunctions that are frivolous and made up with false and misleading information. These actions breaches the First Amendment Rights to petition, access to the courts, while those who are officers of the court and clerk's of court, commit actual felony crimes to convict citizens like the Petitioner as vexatious litigants. Most disturbing, nothing is done to correct this wrongful act, which is a much greater disservice to this nation judicial courts economy than non-lawyers filing his or her own pleadings. What's more troubling, given the stark parallels between a non-lawyer filing his or her own pleadings, and judicial officers committing crimes is that those who are sworn to uphold the law are not punished for their crimes. In reviewing this writ, this Court must pause to remember its own high duty to the Constitution and to the rights it secures of its citizens. In- disputably, if these types of prefiling injunctions and practices are allowed to continue, it will cause irreparable harm to the Petitioner and to other citizens of this Country in the absence this Court intervention.

A1 3. Free Speech (the right to petition) Violation.

The First Amendment to the U.S. Constitution prevents the govern-

ment from making laws which respect an establishment of religion.. . or the right to petition the government for redress of grievances. Drake will focus on the First Amendment right to petition in this writ. Despite the common misconception that the First Amendment prohibits anyone from limiting free speech, the text of the amendment only prohibits the federal government, along with the states and local governments, from doing so. In the case at bar, a federal court in Texas and the state of Texas through the attorney generals office, along with the Texas Supreme Court and the district clerk in Travis County are the governments that placed restrains on the Petitioner's speech by prohibiting his right to petition, in violation of his First Amendment Rights. It is the Petitioner's opinion that the state governments as set forth through the Texas attorney generals office, the clerk of court, and other court employees in Travis County, Texas and the Eastern District of Texas, and Fifth Circuit court that wrongfully dismissed the Petitioner's appeal "depriv[ed]" him of a "right... secured by the Constitution." 42 U.S.C. §1981, and Rev. Stat. §1979, §1983. "Petitioning" is a nonviolent legal means of encouraging or disap- proving government action, whether directed to the judicial, executive or legislative branch. In United Mine Workers of America v. Illinois State Bar Association (1967), this Court exalted the right to petition as "among the most precious liberties safeguarded by the Bill of Rights" and implicit in "the very idea of government." This Court deemed this right as a funda- mental liberty, protected against encroachment by federal, state and local governments. Hence, in NAACP v. Button (1963), it formed the conceptual basis for the Court's ruling that a civil rights group could not be barred from soliciting people to serve as litigants in civil rights cases. The Court declared: "Litigation may well be the sole practical avenue open to a minority to petition for a redress of grievances." Yet, this very precious, nonviolent tool which is a right is what actors of the State and federal governments confiscated from the Petitioner as a means to silence him—to force him to use in what appears violence—to permanently silence him. The First Amendment right "to petition the Government for a redress of grievances" includes a right of court access, but narrowly define this right as the right to "sue" to file petitions. This dominant view fails to meaning- fully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur before it's actually filed when state and federal governments prevents non-lawyers from even filing their petitions as in the case of the Petitioner. Ubi jus ibi remedium —"where there is a right, there should be a remedy." ' This ancient legal maxim articulates a great inspirational ideal. But it is not an accurate description of the American legal system. Not every person who suffers (or fears) legal injury obtains a remedy from the courts. In fact, the American judicial system can be the most harshest place for a

30 person of color to enter—for it either takes away their freedom by placing them in jails or prisons, or obstruct their freedom to petition by prohibiting them from filing civil cases. Either way, the denial of "freedom" has been a cornerstone of American jurisprudence for people of color for centuries. In the face of remedy denial, the critical question is whether this Court will put an end to the abuses used by state and federal courts in the form of prefihing injunctions as set forth in this writ, which are meant to harm only pro se litigants who are citizens of this nation and enjoys an enforceable right to a remedy. An enforceable remedial right would entail a correlative duty upon this Court to provide redress and thereby impose constraints on state and federal courts that use and misuse prefiling injunctions against U.S. citizens to deny their rights to petition and have access to the courts. Citizens of this nation have a constitutional right to a remedy based on the Due Process Clause, the First Amendment, the Equal Protection Clause, as well as the 14th Amendment and to have access to the courts.' Citizens of this nation have a constitutional avoidance canon because the Court's interpretation may violate the "fundamental right" to "access the courts" guaranteed by the "First Amendment right to petition."

Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1485-86 (1987) [hereinafter Of Sovereignty]. The equitable analogue of this legal maxim is "equity will not suffer wrong without a remedy." JOHN NORTON POMEROY, 2 A TREATISE ON EQUITY JURISPRUDENCE AS ADMINISTERED IN THE UNITED STATES OF AMERICA ADAPTED FOR ALL THE STATES AND TO THE UNION OF LEGAL AND EQUITABLE REMEDIES UNDER THE REFORMED PROCEDURE § 423 (Spencer W. Symons ed., 5th ed. 1941).

31 In Rhodes v. Chapman, this Court rejected an Eighth Amendment challenge to prison conditions, but emphasized that the federal courts have a duty to remedy constitutional violations. The Petitioner is not a prisoner, and yet his rights to have access to the courts have been barred, stripped away, and prohibited which has cost the Petitioner thousands of dollars in lost compensation, and treatment that is less than known terrorists who the U.S. government held in Guantanamo Bay. The right to access to the courts for non-prisoners comes with the same right to pay taxes and not to commit crimes. If the government takes away one right, it cannot complain about a citizen not providing this nation in other ways. One of the earliest petitions on record dates back to the year 1644. A group of eleven petitioners, not including their children, entreated the Council of New Netherland for freedom, based on the claim that it was impossible for them to support their growing families under slavery. These slaves were given at least their partial freedom.

8More than twenty Supreme Court cases over the past five decades, one or more Justices has asserted or assumed that a lawsuit is a petition, without a single colleague disputing the premise. See Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1757 (2014); Woodford v. Ngo, 548 U.S. 81, 122-23 (2006) (Stevens, J., dissenting); BE & K Constr. Co., 536 U.S. at 525; Harbury, 536 U.S. at 415 & n.12; Lewis v. Casey, 518 U.S. 343, 406 (1996) (Stevens, J., dissenting); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 636 (1995) (Kennedy, J., dissenting); Prof 1 Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56-57 (1993); Hudson v. Palmer, 468 U.S. 517, 523 (1984); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-97 (1984).

32 Yet, this is the sum of the Petitioners complaint, that actions of the state and federal courts complained about in this writ have regressed back to the days of slavery and have enacted a new kind of slavery that blots out and sever rights enshrined in our Constitution and Bill of Rights for certain class of people like the Petitioner to have access to the courts.

4. Violation of 42 U.S.C. §1981 And Access to The Courts.

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue (file petitions), be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Petitioner race is African American. Magistrate Caroline Craven in the Eastern District of Texas filed a frivolous prefiling injunction against the Petitioner. Since that time, the Petitioner has been unsuccessful in even

91n the 1972 case of Cruz v. Beto, the court explicitly identified "court access right" as a component of the Petition Clause. See 405 U.S. 319, 321 (1972) ("[P]ersons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes 'access of prisoners to the courts for the purpose of presenting their complaints." (quoting Avery, 393 U.S. at 485)). In three prisoner cases over the next three years, lawsuits were treated as First Amendment petitions without any Justice disputing the premise. See Montanye v. Haymes, 427 U.S. 236, 244 (1976) (Stevens, J., dissenting); Fell v. Pro cunier, 417 U.S. 817, 828 (1974); Oriwein v. Schwab, 410 U.S. 656, 660 n.5 (1973).

33 petitioning the eastern district of Texas court to set a hearing on the matter. No hearing was conducted prior to the wrongful prefiling injunction, which are due process right and equal protection violations. It is undisputed that the Petitioner is a member of the racial minority. Travis County, the Attorney Generals Office of Texas, and the Eastern District of Texas conspired against the Petitioner, in particularly: Scot Graydon (assistant attorney general of Texas), Warren Lloyd Vavra, Travis County court employee who portrayed himself as a judge, Senna Willing who conspired with Scot Graydon to declare Drake vexatious, Lora Livingston (state judge in Travis County), Blake Hawthorne (clerk of court at Texas Supreme Court who refused to accept Petitioners pleadings), Scott Field (Third Court of Appeals justice who use to be employed with the Texas attorney generals office and who conspired with Scot Graydon), Melissa Goodwin (Third Court of Appeal justice), Velva L. Price (clerk of district court in Travis County), Wayne Salvant (state criminal judge who denied the Petitioners request to file his personal injury case against Choi), Mark Pittman (Second Court of Appeals justice who advised Salvant to deny the request to allow Petitioner to file suit against Choi), those state judicial officers violated 42 USC §1983, and committed actual felony crimes against the Petitioner. Each of these actors race is white. These are actual crimes committed by state and federal employees, but the state and especially federal actors complained about in this writ, fear

34 no reprisals or punishment for their crimes and or wrongdoing that they committed against Drake, for the reason there will be: no investigations by the FBI or Postal Inspectors [intercepting and destroying pleadings delivered to the courthouse], because they fully know that our judicial system does not care about what occurs to a single or group of nonwhites who are not attorneys in this nations civil courts. The actions of these named individuals prevented Drake from filing suit, giving evidence, and to be a party to suits. The Bill of Rights does not declare who shall or shall not have the right to sue, give evidence, and be a party to a suit. This includes even those that have been wrongfully declared as vexatious litigants like the Petitioner have inalienable rights, but those named herein have taken it upon themselves to hinder the Petitioner rights to sue, give evidence, and be a party to a lawsuit for profit, and as an act of racism and or for their entertainment.

5. The District Court Improperly Denied the Petitioners IFP.

The Eastern District of Texas denied the Petitioners IFP to proceed in the district court and to proceed to the Fifth Court of Appeals. However, the Petitioner has never been provided a means to have an evidentiary hearing conducted on any allegations of the Eastern District of Texas prefiling injunction, and even if there were such a hearing, it would have to be conducted by the only one non-hostile federal judge against the Petitioner in the entire state of Texas, Honorable Keith Ellison, in the Southern District.

35 Petitioner IFPs have been denied based on the fraudulent, biased, and misleading allegations contained in the order signed by Judge Folsom. App. 0, 100a-106a. As set forth herein, there is an assault on the Petitioners rights to sue and file petitions by federal courts nationwide. Unquestionably, the district courts denials of the Petitioners IFPs were improper, and an extreme abuse of discretion that must be addressed by this Court. Because the federal court's reasoning for denying the Petitioner's IFP was based on false and misleading information, and because of extreme biasness as shown in this writ, Drake recommends that this Court orders the Southern District of Texas, and only the Honorable Keith Ellison, U.S. district judge to conduct hearings on whether the Eastern District of Texas facts are correct and if the court had just cause to deny the Petitioner's IFPs which were filed in that court. Even if ordered by this Court, the eastern district of Texas will not conduct an impartial hearing. Lane v. Brown, 372 U.S. 477; Williams v. Kaiser, 323 U.S. 471; Rodriquez v. United States, 395 U.S. 327; and Adkins v. E. I. DuPont de Nem ours & Co., 335 U.S. 331. Further, the Petitioner, Eric Drake, request that this Court also orders the Southern District of Texas, and only the Honorable Keith Ellison, to conduct hearings on the violations of the Petitioner's rights regarding Travis County, the Attorney Generals Office of Texas, the district clerk's office practices and customs (the destroying of documents that the Petitioner filed), as well as other matters concerning declaring the Petitioner as a vexatious litigant. In so much as the Petitioner has lost over a million dollars because

36 of the conspired efforts of the parties named herein and others, the Petitioner further request that this Court orders that every lawsuit filed by the Petitioner or was prevented from being filed because he was declared a vexatious litigant, be tried, re-tried by the Southern District of Texas, and only the Honorable Keith Ellison, and by no other judge in the entire state of Texas. And that the Honorable Ellison will have the authority to try and re- try both state and federal cases involving the Petitioner since the first determination that the Petitioner wrongfully determined as a vexatious litigant. Petitioner would also request an investigation by the FBI into the crimes committed by state and federal judges and the clerk's offices. There is an unconstitutional potential for bias against the Petitioner in the entire state of Texas judicial courts. Rippo v. Baker, 137 S. Ct. 905. There is no probability that the Petitioner could ever obtain an impartial hearing, judgment, or trial in the Eastern District, Northern District, or Western District of Texas Courts, and only one judge in the Southern District of Texas would be reasonably impartial and evenhanded.10

Bracy v. Gramley, 520 U. S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997).

Our Constitution demands, and our Country deserve, a Judiciary willing to hold our judicial court accountable when they defy our most sacred legal commitments and laws.

'°"The probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable." Withrow v. Larkin, 421 U. S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); see Williams v. Pennsylvania, 579 U. S.136 S. Ct. 1899, 195 L. Ed. 2d 132, 141 (2016).

37 The true issues before this Court is not whether the vexatious litigant statute, and the actions of a federal court of refusing the Petitioner's pleading are offensive to our Constitution and the rights of citizens to have access to the courts—we know this to be true. Rather, the narrow question here is whether this Court will put an end to the conduct described herein and outlaw statutes like the vexatious litigant statute in all 51 states of this nation which were written to make non-lawyers more accountable to the courts and society, than license attorneys. And though its standard practices for many federal courts to condemn a non-lawyer to an injunction, without a hearing or the ability to conduct an evidentiary hearing or notice of a hearing, nonetheless, this practice is unconstitutional. A reasonable observer, presented with all "openly available data," the text and "historical context" would have to take some action to prevent the continuation of unconstitutional actions that strips pro se litigants of their rights to have unabridged—access to our judicial courts. To allow the conduct described herein by judicial officers to continue, would pull the pillars down from the very ceiling of this Court and cave in our understanding of justice, impartiality, integrity, and most of all, the denouncing of offensive discrimination—in an almost white nationalism manner—whether its against women, people of different races, religions, anti-foreign sentiments, sexual orientation, pro se litigants or any other citizen of this nation. Petitioner should not be refused access to the courts on account of his poverty. Petitioner filed his IFP with the Fifth Circuit timely, but it is now removed from the record. See App. E, 37a-40a, the clerks record showing IFP filed but when you click on it, it brings up another document. This is to hide the fact that Drake filed his IFP timely.1' Other appellate courts have reversed dismissals of IFPs: Escobedo v. Applebees, 787 F.3d 1226, Hicks v. Collins, 1995 U.S. App. LEXIS 42374; Ginelli v. Los Angeles Fire Dep't, 1994 U.S. App. LEXIS 34697. The Eastern District of Texas did not state that it believed Petitioner did not qualify as a pauper, but simply that the request is denied. The eastern district court did not state that the Petitioner's claims in Drake v. Harrison were frivolous but referred to other cases—denying Drake relief. Drake filed a motion to proceed in forma pauperis and an affidavit listing his assets as

required by § 1915(a)(1). See Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997).

An order denying an application to proceed IFP is immediately appealable and is properly before this court. See Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975). The denial of IFP status is reviewed for an abuse of discretion. Id. at 1243-44. Whether a party may proceed IFP in the district court is based solely upon economic criteria. Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976). Poverty sufficient to qualify does not require absolute destitution. Adkins v. E.I. du Pont de Nemours & Co., 335 U.S. 331, 339, 69 S. Ct. 85, 93 L. Ed. 43 (1948). The central question is whether the movant can afford the costs without undue hardship or deprivation of the necessities of life. Id. at 339-40.

39 CONCLUSION

This case represents an appalling legal acceptance in our civil judicial courts, of how non-lawyers rights as citizens of this nation are stolen from them, just as much as Negro's rights were suppressed and stolen from them during the 1800s as slaves. It's one of the closest examples of modern day civil slavery and race discrimination in plain view: the denial of core consti- tutional rights of black and other nonwhite citizens to have access to our courts, file lawsuits, and to have impartial hearings, trials, and judgments. Nine out of ten state and federal judges would disregard the {l}aw of the land to defeat or silence a pro se litigant from being successful in civil litigant, especially if a large predominantly white law firm was defending the action. Nonetheless, the answer is not to infringe upon the Petitioners rights, a citizen of the United States, but to rule impartially—which is rare. Hence, Petitioner Eric Drake, request for this Court to grant his writ of certiorari.

Respectfully submitted,

Eric Drake Pro Se 10455 North Central Expressway Suite 109 Dallas, Texas 75231 912-281-7100