Team Kimberlin Post of the Day

The Dread Deadbeat Pro-Se Kimberlin represented the Dread Deadbeat Performer Kimberlin in a LOLsuit against the U. S. Bureau of Prisons. The TKPOTD from six years ago today described the case.

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In November, 1997, Brett Kimberlin filed a complaint because the Bureau of Prisons would not allow him to play music on an electric guitar. An amendment in the Budget Act had banned the use of electric and electronic instruments in prisons except during worship services. The U. S. District Court in D. C. decided his case (in favor of the BOP) in late May, 2001, just a couple of weeks before his second release. The following is from the court’s decision [Kimberlin and Rice v. U. S. Department of Justice and Bureau of Prisons, 318 F.3d 228 (2003)]:

Plaintiffs assert that an acoustic guitar is not equivalent to an electric guitar. According to plaintiff Kimberlin, it is impossible for him to play his songs on an acoustic guitar. He is not able to make long, sustained notes. Also, he cannot perform a technique called “vibrato” because the strings on an acoustic guitar will not bend or sustain like those on an electric guitar.

Notwithstanding, BOP has not prohibited all musical expression, only the use of electrical instruments. An active music program and other informal means of musical expression still exist. Plaintiffs contend that an electric guitar is essential to their musical expression. Thus, they argue, banning this instrument is an absolute ban on their musical expression. Plaintiffs are incorrect in asserting that music created by an electric instrument is a distinct expression protected by the First Amendment. This Court has not found, and plaintiffs do not cite, any cases addressing this proposition. Accordingly, the issue is whether BOP’s policy impermissibly limits a prisoner’s First Amendment right to express himself through music by banning one of several mediums by which a prisoner can musically express himself.

Plaintiffs argue that to require them to express themselves musically on an acoustic instrument would be akin to requiring rap musicians to sing ballads, or Muslim prisoners to attend Catholic religious services. Plaintiffs insist that they cannot perform their music on acoustic instruments.

Plaintiffs are free to express themselves musically using other instruments, such as an acoustic guitar. Like the prisoners in Amatel, plaintiffs are only limited, not deprived. They can perform music written for an electric guitar on an acoustic guitar. This is not the same as expression on an electric instrument, but it is certainly an alternate to such expression. Moreover, plaintiff Kimberlin has stated that he has written a song which he can hear in his mind, but cannot perform, edit, polish, or get feedback. He may discuss the notes, lyrics, and ideas with others as a means of expressing himself through his music and getting feedback. Again, this is not the same as playing the electric guitar, but it is an alternate that allows him to express himself musically.

Well, like a group of real musicians once said:

No, you can’t always get what you want,
But if you try sometime, you just might find
You get what you need.

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Given the lack of of success that The Dread Deadbeat Performer Kimberlin has had with his attempts at a musical career (as evidenced by “music” videos on YouTube, the Bureau of Prisons might have wound up with suits from other prisoner raising Eighth Amendment issues if Kimberlin’s LOLsuit had been successful.

Team Kimberlin Post of the Day

I’m not making this up, you know.

After spending years trying to use the courts to suppress the First Amendment rights of people who have written truthful things about him, Brett Kimberlin included this sentence in his failed motion to unseal his informal opening brief in his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit—

Appellant has a right under the First Amendment to appeal in public.

No. He doesn’t. His right to a public trial and, by extension, a public appeal is not secured under the First Amendment. IANAL, but the last time I checked the Bill of Rights, due process rights are secured by the Fifth Amendment.

Patrick Frey’s due process rights are also protected by the Fifth Amendment. His lawyers were able to convince a federal judge that certain information given to The Dread Pro-Se Kimberlin during discovery in the RICO Remnant LOLsuit should have been sealed in order to protect Frey’s rights (and possibly the rights of third parties). TDPK repeatedly asked the District Court to unseal that information, and he was never able to provide a reason why Patterico’s rights should not have been protected.

TDPK’s motion to unseal is timestamped as being received by the Fourth Circuit Court of Appeals at 10:06 Monday morning. The order denying his motion was docketed at 12:01:59 Tuesday afternoon. It didn’t take the court long to see through his frivolous argument.

Everything is proceeding as I have foreseen.

RICO Remnant LOLsuit Appeal News

The Dread Pro-Se Kimberlin did file a sealed version of an informal opening brief in his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit, and he filed a motion with the Fourth Circuit Court of Appeals to unseal his brief.

However, the court’s instructions required that he also file a redacted version for the public docket, and he failed to do so. He’s been given one week to fix his mistake.

The court has also denied his motion to unseal the sealed version of his brief.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day

The Dread Pro-Se Kimberlin’s informal opening brief for his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit was due at the Fourth Circuit Court of Appeals yesterday. As of 9:02:57 pm Monday night, nothing had been posted on the case docket on PACER since 29 September. Now, it’s possible that TDPK got his paperwork in on time but too late in the day for the Clerk’s Office to have scanned and posted it online. If he did get it submitted, it should show up on the docket tomorrow. We’ll see. Meanwhile, here’s the TKPOTD from three years ago today. It deals with the original RICO Madness LOLsuit.  The Kimberlin v. Frey RICO Remnant LOLsuit is the last surviving count of the original RICO Madness case.

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One of The Dread Pro-Se Kimberlin’s complaints against me in both the state Kimberlin v. Walker, et al. nuisance lawsuit and the Kimberlin v. The Universe, et al. RICO Madness is that I engage in my First Amendment right to comment on his past and present behavior. He wrote this in his second amended complaint in the state suit—

BKvAW2013SAC-31The Gentle Reader who has been following The Saga of the Dread Pirate Pro-Se Kimberlin for a while will remember that TDPK’s state nuisance lawsuit collapsed when he failed to provide even one “scintilla” (Judge Johnson’s word) of evidence of falsity in any statement made by any defendant in that case.

TDPK has tried to make a similar allegation in the RICO Madness.ECF 135-139

Since defamation is a state law claim, TDPK has to prove the elements of the tort as prescribed by Maryland law. That means he must show what was said about him was false. He can’t do that. That’s already been adjudicated in the state case in the favor of Aaron Walker, Stacy McCain, Ali Akbar, and me, and he is barred by collateral estoppel arguing otherwise in any further case, including the RICO Madness.

I’ve made it clear that I intend to keep writing about Brett Kimberlin until he is brought to justice. The Gentle Reader should not be surprised to learn that part of my definition of his being brought to justice includes his losing his vexatious lawsuits. By delaying the final resolution of any of them, he increases the amount of time and bandwidth I will spend on telling his story on the Internet. His delaying tactics have the effect of turing the Streisand Effect up to eleven.

collateral estoppel t-shirtOh, one more thing … Collateral Estoppel swag is available for purchase at The Hogewash Store. Stop by a spend some money on a t-shirt or drinkware. The profits go to support this blog and fund the expenses of defending against TDPK’s vexatious lawsuits. If you’d like to help my fellow defendants as well, go to Bomber Sues Bloggers to find out how.

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Of course, we’re no longer taking donations through Bomber Sues Blogger now that Kimberlin’s lawfare has failed so miserably. The RICO Madness LOLsuit was dismissed, the follow up RICO Retread state LOLsuit was dismissed also, and dismissal of the state case was affirmed on appeal.

Everything proceeded as I had foreseen.

Team Kimberlin Post of the Day

The Fourth Circuit Court of Appeals has given The Dread Pro-Se Kimberlin until close of business tomorrow to file his informal opening brief in the appeal of the Kimberlin v. Frey RICO Remnant LOLsuit, so we should be seeing something on PACER by tomorrow or early Tuesday at the latest—unless Kimberlin has decided to give up on the appeal and let it be dismissed for lack of prosecution.

Nah, he’s not that smart.

I’ll bet he’ll file something. I also be that it will be as incompetently drafted as the rest of the stuff he’s filed, his opposition to the motions to dismiss in the Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit, for example. He filed it two years ago today, and I published a copy as More RICO 2: Electric Boogaloo that very day.

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The Dread Pro-Se Kimberlin has filed what he calls his omnibus opposition to the motions to dismiss his Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit.

This also includes an untimely opposition to my motion to dismiss for failure to state a claim and does not properly address my motion to dismiss for lack of subject matter jurisdiction.

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My name only appears in a few places in the LOLsuit’s complaint, but it appears over 60 times in the opposition to the motion to dismiss. The increase was caused by Kimberlin’s failure to properly [redacted—I don’t intend to educate the midget, even at this late date] in the complaint and his attempt to improperly [redacted] in his opposition.

Kimberlin LOLsuit was dismissed by the U. S. District Court. The Fourth Circuit Court of Appeals denied his appeal and sanction him for frivolously including me as an appellee.

Everything proceeded as I had foreseen.

Team Kimberlin Post of the Day

Grumble. We’re still waiting for news in pending Team-Kimberlin-Related court cases. Four years ago today, I posted this Statement on Fund Raising related to the first Kimberlin LOLsuit, Kimberlin v. Walker, et al.

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Brett Kimberlin is suing a group of bloggers that includes me for a million bucks because we have published truthful information and constitutionally-protected statements of opinion about him. Aaron Walker, one of the bloggers named in the suit, is a lawyer, and he is being sued for offering legal advice to Kimberlin’s victims.

Gentle Reader, can you think of any rights more important than your First Amendment right to free speech or your Sixth Amendment right to legal counsel?

Neither can I.

Kimberlin and his cronies have been engaging in lawfare for years now, and it’s time to put a stop to it. We need to defeat his bogus lawsuit because, if we don’t, there will be no end to his harassment of others. You can help us. Go to BomberSuesBloggers to learn how. [We won the LOLsuit back in 2014, so we’re no longer raising money to fund our defense.] If you decide to donate to the defense fund, you should know that I will never see one cent of the money raised. The proceeds will go to paying the substantial costs of defending the suit. Yes, I am represented by a pro bono lawyer, but there will still be filing fees, deposition costs, etc.

If you want to support this blog directly, hit my Tip Jar or use the Amazon shopping link on the Home page.

UPDATE—Stacy McCain points out that if we don’t defeat this suit, it’s possible that Kimberlin might sue you.

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As if to prove Stacy’s point about Kimberlin’s eagerness to engage in lawfare, The Dread Pro-Se Kimberlin filed his Kimberlin v. The Universe, et al. RICO Madness LOLsuit the next day after my post was published.

Team Kimberlin Post of the Day

And we’re still waiting for news in several of the Team-Kimberlin-related court cases. While reviewing material to recycle during the time we’re in this holding pattern, I been enjoying rereading some of Bill Schmalfeldt’s comically inept tweets about the dozen-plus failed LOLsuits that he and The Dread Pro-Se Kimberlin have filed.

On October 15, 2013, TDPK filed his first RICO Madness LOLsuit. The next day, the Cabin Boy™ tweeted this—@BomberSues was the Twitter account for the website setup to collect donations to defray the cost of TDPK’s LOLsuits against bloggers. There never was a RICO “charge.” There was a Racketeering Influenced and Corrupt Organization civil claim in the RICO Madness LOLsuit, but no criminal charge was ever filed as a result of the LOLsuit. And the RICO Madness LOLsuit had no significant effect on the Kimberlin v. Walker, et al. nuisance LOLsuit filed in state court. The pro bono lawyer defending my codefendants and me stuck by us to the end of that suit and through TDPK’s appeal. Further, he successfully defended me pro bono in the subsequent RICO Retread LOLsuit TDPK filed in state court after his first federal RICO suit was dismissed, and successfully represented me in the RICO Retread appeal.

The Cabin Boy™ appealed the first peace order issued against him to the Maryland Court of Appeals. The court refused to hear his appeal. He sought to have the peace order modified. The Circuit Court denied his motion.

As usual, Schmalfeldt got it wrong. First, I dream of a world where I don’t have to sue anyone. Second, I don’t pull the wings off of flies. I zap ’em with one of these.Click on the image to buy one from Amazon.