Cunningham, still fighting 10 years later, says “Justice delayed is much better than justice denied.” Photo: Nate Adams
Bronx resident Benjamin Cunningham hopes that an investigation by the U.S. Attorney’s office will help restore his lawsuit against the U.S. Marshal Services (USMS) for what he alleges was a warrantless violent search and seizure operation conducted against his home in 2009 and a coverup thereafter.
He claims after his lawsuit against the USMS was dismissed his right to justice was deprived when a clerk in the second department appellate court took maters into her own hands and and “denied” his appeal before it was even filed.
The Inspector General Michael E. Horowitz at the U.S. Department of Justice has asked Assistant U.S. Attorney Jeffrey Oestericher, Chief, Civil Division in the Southern District of New York, to investigate Cunningham’s allegations that the supervising USMS agent during that operation 10 years ago, Timothy J. O’Callaghan, filed a faulty affidavit to remove himself as a defendant in the lawsuit filed by Cunningham after the raid.
Later, after Cunningham’s original lawsuit against the USMS was dismissed by U.S. District Judge Deborah A. Batts, even though a Magistrate Judge Kevin Fox had recommended that his claims, including alleged violation of his 4th Amendment rights proceed to a jury trial, he attempted to file an appeal in the appellate division’s second department. Cunningham hired an attorney, Daniel Eigerman, who paid the $495 fees for his notice of appearance on Jan. 11, 2012. However, even before the attorney filed the appeal–he had 30 days–he received a notice two days later on Jan. 13, 2012 that the “appeal” had been dismissed as “frivolous.” Cunningham has insisted that the appeal could not have been dismissed, or even reviewed, since his attorney was never even given the chance to prepare and file it. Moreover, his $495 fee was never returned, he says.
Cunningham believes his right to file an appeal was “illegally” blocked by the Second Circuit Appeals Court’s chief clerk, Catherine O’Hagan Wolfe. When Black Star News contacted O’Hagan Wolfe in 2015 about the incident, she said he had seen documents in Cunningham’s file. “I haven’t read it but I can see it’s long and reads like an appeal,” she said, inexplicably, while essentially admitting that an appeal had never been filed.
O’Hagan Wolfe did not return a recent message by Black Star News with follow-up inquiries about the matter.
The three appellate judges who purportedly “dismissed” Cunningham’s “appeal”–which his lawyer had not yet even drafted let alone file–were listed in the court papers as: Ralph K. Winter; Peter W. Hall; and, Denny Chin. The judges’ signatures don’t appear on the decision, which has an automated signature and stamp of O’Hagan Wolfe, the clerk and reads, “Appellant, pro se at the time of filing his motion, moves for leave to proceed in forma pauperis. Upon due consideration, it is hereby ordered that the motion is denied as moot as he has now paid the filing fee. It is further ordered that Appellant’s claims are dismissed as frivolous.”
“I don’t know what O’Hagan Wolfe was talking about in those papers which I believe she wrote herself,” Cunningham says. “I was represented by counsel, Eigerman, who never got to file an appeal on my behalf. I hope the U.S. Attorney will do the right thing. I wonder how many others have been similarly victimized.”
Cunningham says his case was further compromised when Judge Batts allowed supervising USMS agent O’Callghan to have his name removed from the case.
Cunningham has claimed in a complaint he filed with the U.S. Attorney’s Office, Civilian Crime Report Unit, on March 17, 2017, that in support of his motion to summary judgment asking to be removed as a defendant in the lawsuit, O’Callghan claimed that he himself was not at the scene of the raid on Cunningham’s home on November 29, 2005.
In his June 12, 2006 motion O’Callaghan claimed he remained at the home of Cunningham’s mother while other agents proceeded to Cunningham’s home to conduct the warrantless search. In the affidavit, O’Callaghan listed a Jane Doe and a John Doe as agents who would vouch for his alibi. After Cunningham challenged O’Callaghan’s summary motion to dismiss, U.S. District Magistrate Judge Fox ordered a search of the archives to establish the identities of the purported Jane and John Doe agents. The U.S. Attorney’s office was unable to establish the existence of such individuals. “They could not find Jane and John Doe because they do not exist,” Cunningham says. “Of course O’Callaghan was there during the raid. This means that even at this moment a false affidavit filed by O’Callaghan remains on the docket in my case. For that reason alone the case must be reopened. And I must also be allowed to file the appeal that O’Hagan Wolfe denied me the opportunity of doing.”
Cunningham has worked tirelessly alone on his case without legal representation, having exhausted his savings in legal fees. He made numerous trips to Washington, D.C. before Horowitz, the Inspector General, asked the U.S. Attorney’s Office to look into his allegations against O’Callaghan and O’Hagan Wolfe, he said. He has also met on numerous occasions with staffers in the office of U.S. Rep. Jose Serrano (D-N.Y.), who have also contacted the U.S. Attorney on Cunningham’s behalf.
When Black Star News contacted the U.S. Attorney’s Office today about the status of the investigation into Cunningham’s allegations and the criminal complaint he filed on March 17, 2017 against Timothy J. O’Callaghan in the Civilian Crime Report Unit, spokesperson James Margolin in an e-mail message said: “Thank you for your inquiry. We will decline to comment.”
Cunningham says he remains hopeful that his allegations will be investigated and that he will get to file his appeal. “Justice delayed is much better than justice denied,” he says.
Reach Allimadi via [email protected] Follow him via @allimadi
