VU NGUYEN, Defendant.

May 29, 2013

Opinion by United States District Judge Kent J. Dawson:

This matter is before the Court on remand from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability.

This case arises from the armed robbery of Chong Hing Jewelers in Las Vegas Nevada. In the course of the robbery, several luxury watches having a value of approximately $885,000 were taken by two individuals. The robbers were covered, head-to-toe, in ninja-style white clothing. Before entering the store, one of the robbers executed the store security guard who had his back to them and was cleaning store windows. Eye witnesses had little to go on in describing the robbers other than the fact that one was carrying an assault-type rifle and the other was carrying a bag, and there appeared to be a height difference between the two individuals. The robbers were inside the store for no more than 90 seconds and store employees were assaulted in the process of the robbers obtaining access to the contents of display cabinets.

There was no deficiency in performance of counsel where counsel based the defense on a theory of lack of presence at the scene, incorporating facts and testimony of eyewitnesses to the crime combined with a lack of physical evidence placing Defendant there. This is also entirely consistent with the claim of Defense counsel that they were not previously informed by Defendant of his participation in the robbery. However, even if Defendant did inform counsel of his involvement and potential defense to the shooting, the outcome would not have been different.

Accordingly, Defendant is denied a certificate of appealability.

This may be the first mention of a white ninja outfit, as the prior clothing references refer to mostly (if not always) black clothing, but definitely not the first ninja robbery.

In previous NinjaLaw post, the summary judgment motion on Estate of Scott W. Thompson, regarding death on a 2006 Kawasaki Ninja Motorcycle, was denied in part and granted in part, February 11, 2013: “action proceed to trial only on the “design defect” claim against KHI and KMC in Count I and the prayer for “punitive damages” on that underlying cause of action in Count VIII.”

Since then, there have been three subsequent motions decided by District Judge Mark W. Bennett, in this case No. C 11-4026-MWB

by the Personal Representatives,
Individually, Plaintiffs,

February 25, 2013 – Pretrial Motions
– includes arguments about Hearsay exceptions and whether after 45 minutes the statements of a lay witness to the accident could still be considered “excited utterances” and also regarding “recollections of statements on internet fora or in any other ‘enthusiast publications’ related to motorcycles.” With a footnote7 suggesting this may be “double hearsay” but that was not argued.

March 11, 2013 – Kawasaki’s Motion to reconsider

The Motion To Clarify concerns the scope of evidence and argument that Kawasaki may offer to show that an alleged “design defect” in the 2007 Ninja ZX-10R motorcycle that Scott Thompson was riding at the time of his accident was not a cause of his death almost three years after the accident.

March 14, 2013 – Post-deadline pretrial motions about more hearsay objections regarding use of expert depositions from Kawasaki’s previous expert:

In its Motion In Limine, Kawasaki did not identify a single statement in Mr. Okabe’s deposition that was ostensibly an “admission,” but was not “to the facts in the case” or not connected to the case by more than conjecture. On the other hand, in their Resistance and in the highlighted portions of Mr. Okabe’s deposition, the Thompsons have shown that Mr. Okabe’s Rule 30(b)(6) statements are “admissions to the facts in the case,” concerning the development and performance of the 2007 Ninja ZX-10R motorcycle and the steering damper in it, and those matters are plainly at issue in the case, so that they are connected to it by more than conjecture. Id. This objection to the use of Mr. Okabe’s Rule 30(b)(6) deposition in the Thompsons’ case-in-chief on the ground that the deposition is hearsay not within a Rule 801(d)(2) exception is, consequently, overruled.

So all this is months ago, does anyone know if this case is still on Judge Bennett’s docket? Is there a trial coming or have the parties already settled? maybe more motions?

The long delayed asylum petition of Blood Live Bemba, fleeing Ninja in the Congo. Recall prior NinjaLaw Congo cases.

ERIC H. HOLDER, Attorney General of the United States, et al., Defendants.

Case No. 4:11CV1859 JAR


Decided March 11, 2013, opinion by U.S. District Judge John A. Ross

Plaintiff indicated on his asylum application and in his affidavit in support of his application that he was a member of the Youth Section of the Congolese Movement for Democracy and Integral Development (MCDDI) beginning in 1995. (DSUF, ¶6; Baggerly Dec., ¶6). He stated that in 1996, he was elected secretary of the Diata Branch, and as the secretary, he recorded minutes of the group’s meetings. (DSUF, ¶7). He further stated that, “in December 1998, ‘Ninjas,’ guerillas associated with the MCDDI, launched an attack on the capital, Brazzaville.” (DSUF, ¶8).

Plaintiff denies that he was ever a member of the MCDDI. Instead, he claims that at sixteen, he became a member of the Youth Section of the Congolese Movement for Democracy and Integral Development (Youth JMCDDI), a social organization for young people. (Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss or, In the Alternative, For Summary Judgment & In Support of Plaintiff’s Motion for Summary Judgment (“Response”), [*5] ECF No. 24, p. 2). Plaintiff contends that he disassociated himself from Youth JMCDDI at age eighteen by burning his membership card. (Id., pp. 2-3). Plaintiff denies ever joining the MCDDI, which is an adult group. (Id., p. 3). Likewise, he denies ever participating in any terrorist activity. (Id.).

Due to the activities of its armed wing, the Government contends that MCDDI meets the current definition of an undesignated terrorist organization, commonly referred to as a “Tier III” organization under 8 U.S.C. §1182(a)(3)(B)(vi)(III). (DSUF, ¶¶9-11). Under 8 U.S.C. §1182(a)(3)(B)(vi)(III), a Tier III terrorist organization is “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” defined terrorist activities. Therefore, the Government contends that Plaintiff is inadmissible to the United States under INA §212(a)(3)(B)(i)(I) for engaging in a terrorist activity as that term has been defined by Congress at INA §212(a)(3)(B)(iii)(V). (DSUF, ¶12).


On March 26, 2008, the Deputy Director of USCIS issued a memorandum providing guidance regarding adjudication of cases involving inadmissibility under 8 U.S.C. §1182(a)(3)(B). (DSUF, ¶16). The memorandum instructed that adjudicators should withhold adjudication of cases that could benefit from the Secretary’s amended discretionary authority under the CAA. (Id.).

The Government asserts that the adjudication of Plaintiff’s application is being withheld in accordance with agency policy. (SOF, ¶17; Baggerly Dec., ¶13). If the USCIS were ordered to complete the adjudication of Plaintiff’s [*7] adjustment of status application today, his case would be denied without prejudice to allow Plaintiff to re-file. (Id.)


The Court understands Plaintiff’s frustration with this long and protracted process. As recognized [*34] by other courts, the Court realizes that at some point a long-term hold on the adjudication becomes an effective denial of adjustment of status. See, e.g., Al Karim v. Holder, No. CIVA08CV00671-REB, 2010 U.S. Dist. LEXIS 30030, 2010 WL 1254840 (D. Colo. Mar. 29, 2010)(holding the 8-year delay in adjudicating a refugee’s I-485 application was unreasonable as matter of law); Al-Rifahe v. Mayorkas, 776 F. Supp. 2d 927, 938 (D. Minn. 2011)(denying the government’s motion for summary judgment where the plaintiff’s application was pending for over thirteen years and the government’s argument regarding the lengthy process of assessing Tier III organizations was “severely undermined in Al-Rifahe’s case by the January 2010 memorandum determining that applications on hold because of the applicant’s association with the INC may be considered for an exemption”). While the Court does not identify the “tipping point” of when the length of such a delay becomes a denial, the Eighth Circuit has upheld a ten-year delay in adjudication (although based largely upon an application backlog) as not unreasonable. See Debba v. Heinauer, No 8:08CV304, 2009 U.S. Dist. LEXIS 3484, 2009 WL 146039 (D.Neb. Jan. 20, 2009), aff’d 366 Fed. Appx. 696, 2010 WL 521002 (8th Cir. Feb. 16, 2010). [*35] 10 Furthermore, the Government presented evidence that it has made progress regarding exemptions to other categories of applicants and that it is moving forward with Plaintiff’s application. See ECF No. 42. “[I]n view of all the other circumstances in the case, especially national security concerns and the high-level, detailed, and discretionary reviews necessitated by exemption determinations under 8 U.S.C. § 1182(d)(3)(B)(i),” the Court finds that the 6-year delay experienced by Plaintiff is reasonable as a matter of law. See Ayyoubi v. Holder, 4:10-CV-1881 SNLJ, 2011 U.S. Dist. LEXIS 80129, 2011 WL 2983462 (E.D. Mo. July 22, 2011).

by the Personal Representatives, RANDY W. THOMPSON and VICKY J. THOMPSON,
and RANDY W. THOMPSON and VICKY J. THOMPSON, Individually, Plaintiffs,

No. C 11-4026-MWB


Decided February 11, 2013, opinion by District Judge Mark W. Bennett:

At about sunset on March 21, 2009, Scott Thompson was riding his 2007 Kawasaki Ninja ZX-10R motorcycle in a convoy with two friends on county road K-22 in Plymouth County, Iowa. One of Thompson’s friends, Dave Lachioma, who was also riding a motorcycle, led the convoy, the other friend, Michael Welter, followed in his car, and Thompson brought up the rear on his motorcycle. While driving northbound on K-22, Thompson passed Welter, who was driving at 60 to 65 mph. A few seconds after Thompson passed him, Welter observed the taillight of Thompson’s motorcycle wobble from side to side. Although Welter observed that it looked like Thompson was regaining control of his motorcycle, Thompson was tossed from the motorcycle, slid on his back, feet first, across the highway, and landed in a ditch on the west side of the highway. The motorcycle continued upright in the northbound lane for another several hundred feet, before exiting the highway on the east side. As a result of the accident, Thompson suffered a burst fracture at the T3-T4 vertebrae, causing paralysis below that level. Thompson died on December 25, 2011.

In complaint,

plaintiffs allege that Thompson’s motorcycle accident was the result of the defective design and/or manufacture of his 2007 Ninja ZX-10R motorcycle, because the steering damper on the motorcycle was insufficient and the motorcycle was not reasonably stable.


The parties requested oral arguments on the summary judgment motions. My crowded schedule has not permitted the timely scheduling of such oral arguments, and I find that the parties’ written submissions on the issues presented are sufficient to resolve the pending motions without oral arguments. Therefore, I will resolve the motions based on the parties’ written submissions.


Upon the foregoing,

1. KHI’s and KMC’s November 5, 2012, joint Motion For Partial Summary Judgment (docket no. 64) is granted in part and denied in part, as follows:

a. The Motion is granted as to the “manufacturing defect” claim in Count I, the “breach of implied warranty of fitness for a particular purpose” claim in Count II, and the “negligence” claim in Count III, but

b. The motion is denied as to the “design defect” claim in Count I, and the prayer of “punitive damages” on that underlying cause of action in Count VIII.

2. Ohlins’s November 27, 2011, Supplemental (Amended And Substituted) Motion For Summary Judgment (docket no. 71) is granted in its entirety, and Ohlins is dismissed from this action.

3. This action will proceed to trial only on the “design defect” claim against KHI and KMC in Count I and the prayer for “punitive damages” on that underlying cause of action in Count VIII.

This convicted murderer petitions for writ of habeas corpus. His official middle name in the court record is Ninja. Habeas denied.


Case No. 3:12-cv-00998


January 31, 2013, Filed

Opinion by US District Judge Kevin H. Sharp.

Petitioner Le’Mar Ninja Delvon Brooks was convicted …March 22, 2001… on two counts of first degree murder by a jury and sentenced to two consecutive life prison terms.
Footnote1: Under Tennessee law, this means that the petitioner must serve one hundred and four years in prison before becoming eligible for parole. (See ECF No. 10-20, at 15:18-19.)



This case is somewhat troubling precisely because the State’s evidence was scant and contradictory, and the petitioner’s trial counsel clearly did not do all he could have done to call the State’s marginal evidence into question. The fact that a young man was given an effective sentence of 104 years on such slim evidence is further cause of concern. Notwithstanding, it is not this Court’s prerogative to review the evidence, or to second-guess the state courts’ decisions. Rather, this Court must simply consider whether the state court’s adjudication of the petitioner’s claims was contrary to, or involved an unreasonable application of, clearly established federal law, or if it involved an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). Under this standard, the petitioner has not established that he is entitled to relief on the basis of any of his claims. The petition must therefore be denied.

This case involves a “horrific” crime, the petitioner here convicted twice for the crime after the first conviction overturned for reliance on bite marks that defense counsel ineffectively failed to object to, the second conviction is reviewed here and is denied habeas relief.

CAROL MARIE EGE, Petitioner,

CASE NO. 5:11-CV-10573


Decided November 30, 2012 in opinion by US Magistrate Judge Paul J. Komives:

Full details of the murder are summarized from the Sixth Circuit, the relevant portion being the following quote:

Defendant [petitioner in this case] denied involvement in the murder, and said that “if she … ha[d] done it she would have dressed up like a Ninja and waited” at the victim’s home.

After review of the records, this Court concludes:

As the Michigan Court of Appeals observed on direct appeal following petitioner’s first conviction, “[t]his is a troubling case. The crime is horrific. The initial investigation was deficient. Defendant was not charged until nine years after the murder. There are others who are logical suspects. No one saw defendant at the scene the evening of the murder. No physical evidence links defendant to the crime[.]” People v. Ege, No. 173448, 1996 Mich. App. LEXIS 1805, 1996 WL 33359075, at *1 n. 1 (Mich. Ct. App. Sept., 17, 1996). Nevertheless, the standard for relief under § 2254(d) “is difficult to meet, [and] that is because it was meant to be.” Harrington v. Richter, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011). As the Court explained, “[s]ection 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice system,’ not a substitute for ordinary error correction through appeal.” Id. (quoting Jackson, 443 U.S. at 332 n.5 (Stevens, J., concurring in the judgment)).

Kids use their parents credit card on Facebook and rack up unauthorized debts. Users’-parents file for a class action, to absolve those debts. In particular, regarding credits purchased for the game “Ninja Saga”

I.B., by and through his Guardian ad Litem BRYAN FIFE, et al., Plaintiffs,
FACEBOOK, INC., Defendant.

No. C 12-1894 CW


Decided, October 25, 2012 by Opinion of Judge Claudia Wilken

Below are the facts from the Opinion (citations to complaint removed):

Facebook operates the largest online social network in the world and provides a payment system, Facebook Credits, for users to make purchases within the Facebook website. Facebook permits minors to register on its website and use its service

In October 2011, Plaintiff I.B., a minor, asked his mother, Plaintiff Glynnis Bohannon, for permission to spend twenty dollars on his Facebook account using Bohannon’s Wells Fargo Master Card, in exchange for twenty dollars in cash I.B. purchased Facebook Credits from Facebook for use in “Ninja Saga.” Subsequently, without any notice that his mother’s credit card information had been stored by Facebook and the Facebook Credits system, or that his mother’s credit card information was being used again after the initial twenty dollar purchase, I.B. made in-game purchases for which he thought he was spending virtual, in-game currency. As a result, Bohannon’s credit card was charged repeatedly and without her consent, and the charges totaled several hundred dollars. Upon discovering the transactions, Bohannon tried to obtain a refund from Facebook by leaving a phone message at a phone number listed for Facebook but received no response.

This opinion is on motions to dismiss,

Facebook moves to dismiss the 2AC for failure to state a claim and to strike the class allegations. Plaintiffs oppose the motions.

As to requests for Judicial notice:

Facebook asks the Court to take judicial notice of screen shots of webpages from Facebook’s website on the grounds that they were specifically referred to in the 2AC or illustrate the allegations in the amended complaint. These include Facebook’s Statement of Rights and Responsibilities, Payment Terms, Help Center pages and payment screens in the game Ninja Saga. Plaintiffs object to these exhibits. Facebook’s manager of Payment Operations, Bill Richardson, provides a supporting declaration concerning the public availability of these webpages. However, Mr. Richardson states that the screen shots were viewed and printed between April 13, 2012 and May 10, 2012, and his declaration does not indicate whether these webpages were in effect or available at the time of the events alleged in the 2AC. Richardson Decl. at 2-4 nn.1-6. In support of Facebook’s reply, Mr. Richardson states that Facebook did not “materially alter” the Ninja Saga payment pages between October 2011 and May 2012. Suppl. Richardson Decl. 3. However, whether the minor Plaintiffs I.B. and J.W. would have viewed these particular payment pages is subject to reasonable dispute. Facebook’s request for judicial notice is therefore denied. See In re Easysaver Rewards Litig., 737 F. Supp. 2d 1159, 1168 (S.D. Cal. 2010) (denying request for judicial notice where “[t]he Court finds that whether these are the webpages Plaintiffs would have viewed during their online transactions is subject to ‘reasonable dispute.'”) (citing Fed. R. Evid. 201).

Then discussing applicable law regarding minors in contracts, subheadings: “2. Contracts Voidable Under Family Code Section 6710” and “a. Minors May Disaffirm Contracts Even After Receiving Benefits”:

Facebook contends that minor Plaintiff I.B. cannot disaffirm his contract because he has already received the full benefit of the Facebook Credits that he purchased by using the Credits to make in-game purchases in “Ninja Saga.

Facebook contends that the ruling in E.K.D. on the enforceability of the forum selection clause is directly applicable here because minor Plaintiff I.B. has already accepted the benefits of the contract to purchase Facebook Credits, as demonstrated by his concession that he used the Credits to make “in-game purchases” in the Ninja Saga game. Mot. at 10-11 (citing 2AC 25). Although Plaintiffs do not allege what Plaintiff J.W. did with the Credits that he purchased, Facebook infers that he also spent the Credits online and argues that allowing the minor Plaintiffs to disaffirm their contracts would result in “an unfair windfall to the minor.”

The court goes on to address claims of violations of Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq. (EFTA) to which

Facebook contends that it is not a “financial institution”


Plaintiffs do not contend that Facebook is a financial institution but rather assert a claim under HN22Go to this Headnote in the case.15 U.S.C. § 1693m, which provides for civil liability against persons other than financial institutions.”


Plaintiffs do not sufficiently allege which provision of the EFTA has been violated … motion to dismiss the EFTA claim is granted with leave to amend

Then the Consumer Legal Remedies Act, California’s Unfair Competition Law and the Money Transmission Act.

In conclusion a mixed decision of dismissals, some with leave to amend, and some denied. The claims under the California Family Code remain.

Habeas denied – Assault with ninja swords and a gun barrel butt the the head.

SAMUEL WEAVER, Petitioner,

Case No. 1:11-cv-218


Decided October 5, 2012, opinion by Magistrate Judge J. Gregory Wehrman

Quoting from the Ohio Court of Appeals, Twelfth Appellate District summary of the facts:

{¶2} In April 2007, Michella Eldridge held a yard sale at her home in Hamilton, Ohio. Appellant came to the sale, and at trial, Eldridge testified that she remembered he had driven a white minivan with a steering wheel that had a cover with cherries on it. Eldridge also remembered that he arrived at her yard sale with a female and small child who remained in the vehicle. At the yard sale, appellant showed interest in a handgun that Eldridge’s husband was showing to his father. Although he did not purchase anything at that time, appellant returned later that day and bought a pair of “Ninja” swords.

{¶3} Approximately a week after the yard sale, appellant returned to Eldridge’s house in the white minivan and arrived just as she was cleaning up after another yard sale. Before leaving, appellant purchased a plant from Eldridge.

{¶4} On May 19, 2007, Eldridge was at home with her daughters when she heard the doorbell ring. She went to the back door and saw appellant. Appellant asked her whether she still had the gun he saw at the yard sale. When Eldridge told him she no longer had the gun, he asked her whether she had any other “firearms.” Eldridge explained that they had a “Tech 9,” but that she was not sure her husband wanted to sell it. Appellant then asked if he could see the gun and told her that he would get the money to purchase it.

{¶5} Eldridge told appellant to wait outside, and she pushed the back door almost completely closed. She then went through the house and retrieved the gun from a dresser. She placed the gun on her dining room table. She did not notice appellant was in the room until he reached across her and grabbed the weapon. As Eldridge pleaded with appellant to give the gun back to her, he struck her on the head with the butt of the gun.

{¶6} Appellant smiled after hitting Eldridge the first time and started for the back door, but Eldridge followed him. As she was asking for the gun, appellant’s arm went up to strike her a second time, and Eldridge hit him in the face. He then hit her in the head again with the butt of the gun. Eldridge testified that the blow “dazed” her and “kind of put [her] out.” Appellant then took off out the back door. Eldridge testified that she “shook it off” and chased after appellant.

{¶7} Eldridge caught appellant and grabbed his shirt. She testified that he exclaimed, “Let go of me you fucking bitch,” and he struck her in the head with the butt of the gun three more times. Eldridge was bleeding, and appellant fled. She called 9-1-1 and was taken to the hospital, where she received 28 stitches in her head for a wound deep enough to expose her skull.

The petition for writ of habeas corpus was denied with prejudice.

The defense argument (based on the defendant’s story) is that he fired his gun (murdering his friend) because he thought there were ninja outside the window.

DAVID BALLARD, Warden, Mount Olive Correctional Complex, Respondent.

CIVIL ACTION NO. 1:09-1221


Decided August 8, 2012 by opinion of United States Magistrate Judge R. Clarke VanDervort:

Around 2:00 a.m. on September 16, 2002, Petitioner called Justin Workman to see if he wanted to “get high.” Petitioner admits that on the morning of September 16, 2002, he and Mr. Workman were smoking, drinking, and injecting controlled substances. Petitioner claims that he saw ninjas or unidentified police officers peering into his second floor apartment windows. Petitioner retrieved two pistols and threw one to Mr. Workman. Petitioner states that Mr. Workman jumped down from the kitchen sink counter yelling that “they were coming in.” Petitioner contends that when he turned he saw a shadow, fired his pistol, and killed Mr. Workman.


Dr. David Clayman testified that he works for Highland Behavioral Health as a clinical and forensic psychologist. (Respondent’s Exhibit No. 21, p. 6.) Dr. Clayman stated that he evaluated Petitioner on July 22, 2003. (Id., pp. 10 – 11.) Dr. Clayman testified that Petitioner’s “statements to us were fairly consistent with that given in the police reports” and “devoid of significant psychological disorder.” (Id., p. 13.) Dr. Clayman stated that in his opinion Petitioner genuinely believed there were Ninjas in and around his residence. (Id., p. 14.) In his report, Dr. Clayman wrote that “his discussion with the police on the day prior to the shooting does suggest that he was living under the idea that he was truly being threatened, and the use of drugs exacerbated and distorted his unrealistic perception.” (Id., p. 17.) Dr. Clayman testified that Petitioner’s belief system supported that he made a distinction between legitimate cops and intruders that he needed to defend himself against. (Id., pp. 18 – 19.) Dr. Clayman stated that Petitioner had a high level of paranoia. (Id., p. 19.) Dr. Clayman explained that a person’s sense of paranoia can be heighten by the act of friends agreeing that they hear or see things that do not exist in reality. (Id.) Dr. Clayman stated that he did not find anything during his evaluation to support a conclusion that Petitioner had some sort of hatred for Mr. Workman or police officers. (Id., p. 22.) Dr. Clayman testified that Petitioner told him “he felt he wasn’t going to survive that night” and “that he felt threatened by the Kevlar police. I’m going to call them that.” (Id., pp. 22 – 23.) Dr. Clayman stated that in his opinion Petitioner discharged his firearm because “he believed he was in danger and that that’s why he was firing.” (Id., p. 40.) Dr. Clayman acknowledged that Petitioner merely indicated that the intruders were coming in the house after him and the threat Petitioner felt could have been the fact he did not want to be arrested for drugs. (Id., p. 43.) Although Dr. Clayman stated that Petitioner did not premeditate to kill Justin, Dr. Clayman acknowledged that Petitioner had the capacity to premeditate to shoot someone. (Id., p. 45.) Dr. Clayman explained that Petitioner appeared to be able to make a distinction between the “regular police” and the “delusional police.” (Id., p. 24.) Dr. Clayman acknowledged that Petitioner felt like the police were outside watching or stalking him because the police knew he was engaging in drug activity. (Id., p. 26.) Although Petitioner informed Dr. Clayman that intruders “looked like Ninjas because they were wearing Kevlar” and “I had shot the shit out of them and didn’t hurt them,” Petitioner specifically stated that the intruders never shot at him. (Id., pp. 27, 31, and 43.) Dr. Clayman stated that Petitioner described the people around his apartment as follows: “He saw two of them coming up the alley. He could see badges and heard them say, ‘Cockle doodle do, the early bird gets the worm.'” (Id., p. 29.) Dr. Clayman testified that he believed Petitioner had a personality disorder: antisocial with paranoid traits. (Id., p. 32.) Specifically, Dr. Clayman explained as follows: “He has shown throughout his life he has had a careless disregard for the law. He has had this paranoid trend.” (Id., p. 33.)

And quote from the State court:

Additionally, in this case, and perhaps most pertinent for these purposes, former trial counsel, Elizabeth French, Esq. testified at the Omnibus hearing that the strategy/theory of their case was to actually present the Petitioner’s version of events from his delusional perspective at the time of the crimes, hoping that the jury would understand his mindset, to wit: that several men dressed in black, presumably police officers operating outside the law, Ninjas, or phantoms were invading his home by coming through his windows in swarms, and that he honestly believed that he was protecting himself by firing the several shots fired. Ms. French testified that the Petitioner was so adamant about the incident being “self defense” that he disagreed with presenting the jury with a diminished capacity defense.

but finds

that trial counsel did not act unreasonably in presenting testimony from Dr. Smith and Dr. Clayman. Again, trial counsel was proceeding on the theory that Petitioner accidentally shot Mr. Workman because he felt threatened based on his hallucination that intruders were entering his apartment. Trial counsel presented the testimony of Dr. Smith and Dr. Clayman in an attempt to support this defense. Dr. Smith testified that at the time of the shooting, Petitioner “was certainly operating under a strong mental aberration.” (Respondent’s Exhibit No. 21, p. 61.) Dr. Clayman testified that in his opinion Petitioner genuinely believed there were Ninjas or Kevlar police in and around his residence. (Id., p. 14.)

Therefore there is no ineffective assistance of counsel and the Magistrate Judge

RECOMMENDS that the District Court GRANT Respondent’s Motion for Summary Judgment (Document No. 58.), DISMISS Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus


CIVIL NO. 3:12-CV-01065


This case is decided July 12, 2012 by recommendation of Magistrate Judge J. Andrew Smyser.
That recommendation was then adopted by order of District Judge A. Richard Caputo.
Then on appeal to the Third Circuit, per curiam opinion before Circuit Judges Scirica, Hardiman and Greenaway.

All three of these opinion make reference to the “ninja”, an allegation that this words as name-calling was defamatory.

From Judge Smyser’s version of the facts:

The plaintiff commenced this action by filing a complaint and an application to proceed in forma pauperis. The complaint named Luzerne County as the defendant. We granted the plaintiff’s application for leave to proceed in forma pauperis. After reviewing the complaint in accordance with 28 U.S.C. § 1915(e)(2), we concluded that it failed to state a claim upon which relief may be granted. We granted the plaintiff leave to file an amended complaint.

The plaintiff filed an amended complaint. The defendants are: 1) Patrolman Anthony Calabro; 2) Patrolman Jessica Bartalotta; 3) Chief Paul Porfirio; and 4) Judge David W. Lupas. The plaintiff alleges the following facts in his amended complaint.

The plaintiff told defendant Calabro that he wanted to file charges against Mark Davenport for making terroristic threats and shooting his house, his car, and the West Pittston pool with a BB gun. Defendant Bartalotta asked the plaintiff about his firearms. The plaintiff told her that his firearms had nothing to do with filing charges against Davenport, but he offered to show her his license to carry the firearms. She told him that he could lose his guns one of these days. Defendants Calabro and Bartalotta refused to file charges against Davenport. The plaintiff then called defendant Porfirio to complain about defendants Calabro and Bartalotta. Defendant Porfirio told the plaintiff that there was nothing that he could do and that if the plaintiff sued Davenport bad things would happen.

Months later the plaintiff reported that Charles Hughes Jr. had committed a crime, but the plaintiff was falsely accused of the crime that he had reported. Defendant Calabro released Hughes, who was under the influence of drugs and alcohol and who had a gun. Defendant Bartalotta told the plaintiff that she was not going to process him because she did not like him. Defendant Porfirio then started to process the plaintiff. He threatened the plaintiff and told him to put his hat and face mask on for his mug shot. He also told an FBI agent that the plaintiff was a ninja, thereby defaming his character. Although the plaintiff wished to remain silent and to have a lawyer, defendant Calabro completed a police report and made the plaintiff sign it.

Defendant Lupas dismissed the plaintiff’s Rule 600 motion. During a court proceeding, he allowed everyone to speak except the plaintiff and he refused to let the plaintiff see a doctor.

The plaintiff is seeking compensatory damages, dismissal of his criminal charges, the return of his firearms, and restoration of his gun permit.

And in discussion:

Although the plaintiff seeks return of his firearms, he does not allege that the named defendants seized his firearms. Nor does he allege anything regarding the circumstances of any seizure of his firearms.

The plaintiff is seeking to hold defendant Porfirio liable for making him put his hat and facemask on for his mug shots. But he has not alleged how that violated his rights.

The plaintiff claims that defendant Porfirio’s statement to an FBI agent that the plaintiff is a ninja defamed his character. It is doubtful that such a statement could be seen as defamatory. But, even assuming for the sake of argument that the statement was defamatory, it was not a violation of the plaintiff’s constitutional rights.

The plaintiff claims that defendant Calabro prepared a police report and made him sign it even though he had wished to remain silent and to have a lawyer. The plaintiff has not alleged that any statements in the police report were used against him during a trial. Thus, he fails to state a claim upon which relief may be granted. See Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003)(holding that a plaintiff may not base a § 1983 claim on the mere fact that police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial).

This Magistrate Judge recommendation for dismissal was adopted by District Judge A. Richard Caputo who wrote in opinion October 3, 2012:

Months later, Mr. Brown reported a crime that Charles Hughes, Jr. allegedly committed, but Mr. Brown was falsely accused of the crime. Defendant Calabro then discriminated against Plaintiff and released Mr. Hughes while he was under the influence of alcohol and possessed a gun. Plaintiff was then told by Defendant Bartalotta that he would not be processed because she did not like him. Defendant Porfirio then started to process Mr. Brown, but he was required to wear a hat and face mask for his mug shot. Defendant Porfirio also told an FBI agent that Mr. Brown was a ninja. Additionally, Mr. Brown wished to exercise his right to remain silent, but Defendant Calabro completed a police report and required Plaintiff to sign it.


Magistrate Judge Smyser also concludes that Mr. Brown’s claim seeking return of his firearm should be dismissed because he fails to allege that the named Defendants seized his firearms “nor does he allege anything regarding the circumstances of any seizure of his firearms.” (Id. at 8.) Additionally, the Magistrate Judge recommends dismissal of the claims against Defendant Porfirio because Plaintiff does not explain how being required to wear a hat and facemask during a mug shot violated his constitutional rights. Additionally, the Magistrate Judge concludes that Defendant’s Porfirio’s alleged statement that Plaintiff was a ninja did not amount to a constitutional violation. (Id.)

On subsequent appeal to the Third Circuit, the unanimous three judge panel writes:

Because the appeal presents no substantial question, we will summarily affirm the District Court’s order.


In the complaint, as amended, he claimed that the defendants – three Luzerne County police officers and one Court of Common Pleas judge – committed various forms of alleged misconduct, including: failing to arrest his neighbor for shooting a BB gun at Brown’s house; failing to arrest a driver for driving while intoxicated; defaming Brown by referring to him as a “ninja“; filing a police statement on Brown’s behalf under false pretenses; and prosecuting Brown for a crime committed by someone else.

and specific to the defamation claim:

[D]efamation is actionable under 42 U.S.C. § 1983 only if it occurs in the course of or is accompanied by a change or extinguishment of a right or status guaranteed by state law or the Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 701-12, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)); see also Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987) (“Absent the alteration or extinguishment of a more tangible interest, injury to reputation is actionable only under state defamation law.”) (internal citation omitted). Here, Brown alleged only that Defendant Porfiro referred to him as a ninja. Brown did not allege that he suffered the extinguishment of a right or status guaranteed by state law or the Constitution, and has not stated a civil rights action for defamation.