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KELLY v. CITY OF NEW YORK

September 7, 2005.

ALBERT KELLY, et al., Plaintiffs,
v.
THE CITY OF NEW YORK, et al., Defendants.



The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

Plaintiffs are former employees of the Department of Corrections of the City of New York (the "DOC"). Plaintiffs' federal claims are brought under 42 U.S.C. § 1983 for alleged violations of the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also assert claims under the New York State Human Rights Law and the New York City Human Rights Law.

Defendants now move for summary judgment. Plaintiffs oppose that motion, and cross-move to strike certain evidence presented by defendants and for a continuance pursuant to Fed.R.Civ.P. 56(f).

  Plaintiffs' motion to strike is granted in part and denied in part. Plaintiffs' motion for a continuance is denied. Defendants' motion for summary judgment is granted. Procedural History

  Plaintiffs initiated this action by the filing of a complaint on October 4, 2001, and filed an amended complaint on January 23, 2002. Plaintiffs' amended complaint asserted eight causes of action. The parties cross-moved for partial summary judgment, and on July 9, 2002 the late Judge Allen Schwartz issued an order granting defendants summary judgment on all but the equal protection claim. On January 6, 2003, plaintiffs moved for reconsideration of the July 9 order. On February 20, 2003, Judge Schwartz issued an order granting in part plaintiffs' motion for reconsideration, and reinstating plaintiffs' claims under the New York State and City Human Rights Laws. In April 2003, this case was reassigned to the docket of the undersigned judge.

  Part One of this opinion will address defendants' motion for summary judgment. Plaintiffs' motions will be addressed in Part Two.

  Part One

  Facts

  Plaintiffs in this action are Albert Kelly, Michael Flynn, Ajama Jabari Bey, Wayne Bollin Bey, Ntchwaidumela Bey, Agnes Bey, and Zaimah El. These are the names which are used in the caption and the names which generally appear in the motion papers. However, certain of the plaintiffs are now or in the past have been referred to by different names: Albert Kelly is now known as Faruq Noble Bey; Ajama Jabari Bey was formerly known as Tyrone Weston; Wayne Bollin Bey was formerly known as Wayne Bollin; Ntchwaidumela Bey was formerly known as Ashley Steward; Agnes Bey was formerly known as Agnes Conrad; and Zaimah El was formerly known as Gwendolyn Poche-Houston. For the sake of consistency and clarity, this court will refer to the plaintiffs using the names under which they filed this action, even though certain papers in evidence bear the other names. Plaintiffs were all DOC employees.

  The Investigation

  Sometime in 1996, the NYPD received intelligence information about a group known as "The Great Seal Association of Moorish Affairs." This information was communicated throughout the NYPD by a memorandum dated April 26, 1996. That memorandum was from the Chief of Detectives, and was titled "Heightened Security Alert on Car Stops Involving `Moorish National' License Plates." The memorandum cautioned that members of the group known as "The Great Seal Association of Moorish Affairs" were suspected of armed robberies and trafficking in high-powered automatic weapons. The memorandum warned law enforcement officers to look out for, among other things, vehicles bearing "Moorish National" license plates; persons bearing official-looking documents asserting that the bearer has diplomatic immunity or is an employee of the Justice Department; or persons who refuse to recognize the authority of police officers. The memorandum does not mention religion. The memorandum was forwarded to defendant Michael Caruso as part of a fax sent on July 9, 1996.

  At all relevant times, defendant Michael Caruso was the Inspector General of the DOC. In 1996, a number of suspicious tax forms and other papers submitted by DOC employees were forwarded to the DOC's Inspector General's Office. The submitted papers included statements by certain DOC employees that they were exempt from paying taxes or that they were immune from the jurisdiction of the United States and the State of New York.

  The tax forms in question were forms filed by an employee with an employer dealing with the withholding of income tax. The federal form is a W-4 and the New York State form is an IT-2104. Both are entitled "Employee's Withholding Allowances Certificate." These forms permit an employee to claim "allowances," such as dependents, in order to reduce the amount of withholding. The forms also permit an employee to claim complete exemption from withholding. In 1996, the New York City Office of Payroll Administration (the "OPA") reported that many New York City employees had filed their W-4 tax forms with either unusually high numbers of claimed allowances or notations that they were totally exempt from paying any income tax. As a result of this information, the New York City Department of Investigation (the "DOI") initiated a City-wide investigation to determine whether any City employee had engaged in criminal activity in submitting tax documents related to employment by the City. As part of the investigation, the OPA generated a list of approximately 1800 New York City employees who had filed W-4 forms with 40 or more claimed allowances. The report indicated certain information about each employee, but did not contain information about an employee's race, religion, or nationality.

  The OPA list was provided to the New York State Attorney General's Office and the Manhattan District Attorney's Office. Those offices then directed DOI to arrest approximately 100 of the 1800 employees on the OPA list. The arrested employees were subsequently criminally prosecuted by the Attorney General or the District Attorney. Approximately 70 of those arrested and criminally charged were DOC employees, six of whom identified themselves as "Moorish-American" nationals. The arrested DOC employees were suspended from work without pay. Those DOC employees who were later convicted of felonies or of certain misdemeanors involving the oath of office were automatically terminated from their employment with the DOC pursuant to § 30(1)(e) of the Public Officers Law. Those DOC employees who were criminally prosecuted but were not terminated pursuant to § 30(1)(e) were served with disciplinary charges for, inter alia, filing false tax information.

  Of the remaining 1700, approximately 1100 to 1200 were employees of the DOC. Of the DOC employees, 184 had submitted federal or state tax forms indicating that they were not subject to federal or state income taxation. Some of the 184 also submitted other papers in support of their claimed exemption. Caruso recommended that charges and specifications be brought against the 184 DOC employees for, among other things, filing false tax information.

  Out of these 184 employees, Caruso recommended that 21 be terminated. The 21 individuals recommended for termination included the seven plaintiffs in this action. He viewed these 21 as being guilty of particularly serious misconduct in the filing of allowance forms and the supporting papers. For instance, many of them had alleged that they were not subject to the jurisdiction of the United States and the State of New York, and had purported to renounce their United States citizenship. Some had stated that they were not subject to arrest. All of them indicated that they were "Moorish American" nationals. This raised at least a suspicion that they were part of the group known as the "The Great Seal Association of Moorish Affairs," which, as explained earlier, had been determined to be a dangerous group by the police.

  Documents Submitted by Plaintiffs

  The following is a description of the documents received by the DOC Inspector General's Office (Caruso's office) in the course of its inquiry. These consisted of withholding tax allowance forms and other documents submitted to the DOC in support of the claims in the allowance forms.

  Albert Kelly

  The Inspector General's Office was forwarded seven tax forms signed by Kelly: two federal W-8 forms titled Certificate of Foreign Status, one each from 1995 and 1996, certifying under penalty of perjury that Kelly was not a U.S. citizen or resident for those years; four federal W-4 forms, two each from 1996 and 1997, certifying under penalty of perjury that Kelly was exempt from withholding for those years; and one state IT-2104-E form titled Certificate of Exemption from Withholding certifying under penalty of perjury that Kelly was exempt from state withholding for 1996. Kelly does not deny that he signed and submitted these forms. The Inspector General's Office also received a document titled "Constructive Notice of Waiver of Tort" (the "Notice"). The Notice is not dated, but a photocopy of the envelope indicates that it was sent to the DOC by certified mail on March 28, 1997. The return address on the envelope indicates that the sender was Jawan Akil Bey. Kelly admits signing the Notice during March 1997, but claims that he did not know it would be filed with the DOC. Although the Notice contains a distribution page listing at least four DOC employees as recipients, Kelly claims that he never saw that page.

  The Notice purports to establish that "We the People, `Beys', `Els' and `Washitaw Nationals', Natural Persons Sui Juris, the aboriginal, Free National Moors and Continental united states Citizens . . . cannot be lawfully obligated or compelled to be subjugated to involuntary withholding without our informed consent pursuant to Rodrigues v. Secretary of Labor Donovan, 769 F.2d 1344 (1985)." The Notice also purports to establish a contract, under which "violations henceforth shall constitute acceptance of the contract herein offered for ONE MILLION DOLLARS ($1,000,000) in GOLD (31 U.S.C. § 5112) per Right, per Day." Not surprisingly, the above-cited case and statute are utterly inapposite. The Notice includes the statement that "[t]he fact that our actions are pursuant to our sincerely held spiritual convictions means that even Congress shall make no law prohibiting the free exercise thereof." The final line of the Notice reads "We are aboriginal `Beys', `Els' and `Washitaw Nationals'" and is followed by a number of signatures, including that of Faruq Noble Bey, aka Albert Kelly.

  The final document forwarded to the Inspector General's Office as part of Kelly's file is a letter from David Chavis El. The letter is not specifically addressed to any DOC employee; rather, it is addressed to "All That May Be Concerned." The return address on the letter indicates that it was sent on behalf of the "Azizan Moorish Nation", and the signature line indicates that Chavis El is the National Ambassador. The letter purports to establish that
The Azizan Moorish National presenting this correspondence is a Citizen of the Azizan Moorish Nation, in good standing, and is protected by International Law. Our National is NOT a U.S. citizen, therefore falling within the jurisdiction of the Azizan Moorish Nation, and is not subject to U.S. regulations, but protected by them.
We of the Azizan Moorish Nation are Indigenous and Aboriginal to the Continental Amexem (Americas). This has been substantiated by the historical research of Prof. Ivan Van Sertima regarding the Moorish presence in Ancient Amexem (America), as well as documentation from the Moroccan Embassy testifying to the presence of Moors on this land mass at least a thousand years before the arrival of Columbus.
The letter is neither signed nor dated, and does not name any specific person. Kelly does not deny submitting this document, but denies that he intended to renounce his United States citizenship or claim immunity from the jurisdiction of the United States or the State of New York. Michael Flynn

  The Inspector General's Office was forwarded three tax documents signed by Flynn. The first tax document is titled "Certificate of Exemption from Withholding in Lieu of Form W-4" and is paired with single-page cover letter. The letter is undated, though the Certificate indicates that it is to apply to withholdings during 1996. The Certificate certifies under penalty of perjury that Flynn is "EXEMPT by law from withholding for the year of 1996." The cover letter is ostensibly from Flynn's employer and purports to give notice to the IRS that the employer will stop withholding from Flynn's income unless the IRS responds within 30 days. The cover letter appears to be an uncompleted form, as spaces marked "[ON EMPLOYER'S LETTERHEAD]" and "Sincerely: Owner/Manager of Business" have not been replaced with the actual information. The second is a federal W-4 form from 1996, certifying under penalty of perjury that Flynn claimed 99 allowances for that year. The third is a state IT-2104 form titled "Employee's Withholding Allowance Certificate" dated August 21, 1996, certifying that Flynn claimed 99 allowances for that year. Flynn does not deny that he signed and submitted these documents.

  The Inspector General's Office was also forwarded a letter from Flynn to Alan Vengersky, the DOC's Director of Personnel. In the letter, dated November 12, 1996, Flynn requests that the DOC "stop deducting taxes from my paycheck" because, based on his research, the government has no authority to impose a direct tax on him. Flynn does not deny that he signed and submitted this letter.

  The Inspector General's Office also received a document titled "Constructive Notice of Waiver of Tort" signed by Michael Flynn. This document is identical to the Notice described earlier. However, the Notice in Flynn's file also contained a cover letter on the letterhead of The Great Seal National Association of Moorish Affairs. The cover letter is undated, and signed by Jawan Akil Bey, the apparent sender of the Notice. Flynn admits signing the Notice, but claims that he is not a Moorish American or a Washitaw National. Rather, Flynn claims he signed the Notice "to support their religious beliefs about why they are not subject to taxes." Like Kelly, Flynn claims that he did not submit the Notice to the DOC. Unlike Kelly, Flynn does not claim that he was unaware that a third party might submit the Notice to the DOC.

  Ajamu Jabari Bey

  The Inspector General's Office received five tax documents signed by Jabari Bey: two federal W-4 forms, one each from 1981 and 1996, certifying under penalty of perjury that Jabari Bey was exempt from withholding for those years; one document titled "Withholding Exemption Certificate in Lieu of Form W-4" from 1997, certifying under penalty of perjury that Jabari Bey was exempt from withholding for the year 1997; one document titled "Certificate of Foreign Status for a Moorish-American" dated January 17, 1997, certifying under penalty of perjury that Jabari Bey is not a citizen or resident of the United States; and one state IT-2104 form dated August 7, 1996, certifying that Jabari Bey claimed 99 allowances for that year. Jabari Bey does not deny that he signed and submitted those documents.

  The Inspector General's Office also received a "Constructive Notice of Waiver of Tort" signed by Jabari Bey. The Notice is identical to the ones described earlier, and includes the same cover letter. Jabari Bey admits signing the Notice, but claims that he did not know that it would be sent to the DOC. However, Jabari Bey admits that Jawan Akil Bey mailed a copy of the Notice to the DOC.

  The Inspector General's Office was forwarded a number of other documents signed or submitted by Jabari Bey. The first document was titled "Legal Notice Declaration of Status" and, like the Notice, was on the letterhead of The Great Seal National Association of Moorish Affairs. The document is undated, and there is no addressee. Three copies of this document were forwarded to the Inspector General's Office: though not identical, the only differences are cosmetic. The document purports to give "lawful and legal notification, to you, concerning the RIGHT(S), IMMUNITY(IES) and SOVEREIGN STATUS of the FREE MOORISH NATIONALS; the Beys and Els of the Continental United States." The document states that
the FREE MOORISH NATIONALS "were not included and were not intended to be included" as "citizens" (subjects) of the Union States Rights Republic. Resultantly, the FREE MOORISH NATIONALS, bearers of the names/titles Bey and El, are excluded from Union States Rights Republic (U.S.A.) jurisdiction. The FREE MOORISH NATIONALS are Sovereign (self-governed) by and ONLY obligated to THE FREE MOORISH ZODIAC CONSTITUTION, THE GREAT SEAL and the principles and standards embodied in the MOORISH NATIONAL FLAG . . . THE FREE MOORISH NATIONALS maintain a NON-OBLIGATORY respect for the Union States Rights Republic (U.S.A.), its members, laws, ordinances, codes, customs and tradition.
The document goes on to state that
 
the FREE MOORISH NATIONALS, bearers of the names/titles Bey and El, the LEGAL CITIZENS of the Continental United States, the land of our Moorish forefathers of Moroccan descent, having and retaining ALL SUBSTANTIVE "RIGHTS AND IMMUNITIES OF NATIONALS", enjoy and operate upon consummated, vested Constitutional RIGHTS AND IMMUNITY(IES) from TAXATION, CRIMINAL AND CIVIL JURISDICTION by, and of, the Union States Rights Republic (U.S.A.) . . . [and] this firmly establishes a WANT OF JURISDICTION on the part of the Union States Rights Republic (U.S.A.).
The document is signed by Jabari Bey, and the phrase under the signature line indicates that Jabari Bey is "A FREE AND SOVEREIGN MOORISH-AMERICAN." Jabari Bey does not deny that he signed and submitted this document.

  The Inspector General's Office was also forwarded two copies of a document titled "Letter of Credence: Notification of Rights and Immunities." The copies appear to be identical. The document is on the letterhead of The Great Seal National Association of Moorish Affairs and is undated. The document is addressed to all federal, state, and city officials and public servants, and states that "[t]he Sovereign individual, named herein, is not to be arrested or held for detention under any circumstances. The individual named herein is exempt from Customs, tariffs, taxation, and any hindrance or restriction of his or her ...


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