Diarra v. New York City

Filing 274

MEMO ENDORSEMENT denying 273 Motion to Unseal. ENDORSEMENT: APPLICATION DENIED. Consistent with my February 11, 2020 Order, (Doc. 255), Plaintiff originally filed the documents on the docket and, as stated in his letter, possesses copies of the documents that were eventually filed under seal. Therefore, Plaintiff has permission to use any copies of the documents in his possession solely in connection with the National Action Network investigation. SO ORDERED.. (Signed by Judge Vernon S. Broderick on 9/29/2022) (kv)

Case 1:16-cv-07075-VSB-OTW Document 274 Filed 09/29/22 Page 1 of 8

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‫ב"ה‬
The Law Offices of Kissinger N. Sibanda, Esq.
09/29/2022
P.O. Box 714
Consistent with my February 11, 2020
Livingston, NJ 07039
Order, (Doc. 255), Plaintiff originally
Kissinger N. Sibanda, DC Bar #1017426 filed the documents on the docket and,
as stated in his letter, possesses copies
Telephone [phone]
of the documents that were eventually
Email: [e-mail]

filed under seal. Therefore, Plaintiff
has permission to use any copies of the
documents in his possession solely in
connection with the National Action
Network investigation.

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April 9th, 2021

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United States District Court
Southern District of New York

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________________________________
MOUSSA DIARRA,
Plaintiff,
V.
CITY OF NEW YORK,
Defendant.

) Civil No. 1:16-civ-07075(VSB)
) (OTW)(closed)
)
)
)
LETTER MOTION:
)
)
REQUEST TO SHARE
COPIES OF SEALED
)
DOCUMENTS, WITH
)
NATIONAL ACTION
)
NETWORK FIELD
)
DIRECTOR DEREK
)
PERKINS, IN PERSON.
)
)
)
(Unoppossed)
)

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DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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Case 1:16-cv-07075-VSB-OTW Document 274 Filed 09/29/22 Page 2 of 8

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Background:
On March 26th, 2021, the field coordinator Derek Perkins sent me

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an email requesting to see copies of the sealed photos of the victim in
the matter 1-16-cv- 07075 (VSB). See, Exhibit - A: email request. The

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case, 1-16-cv-07075 (VSB)(OTW), its decision, subsequent appeals and
the way it was handled is now subject of an investigation by the Second

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Circuit judicial committee, as well as being subject to a pending Second
Notice of Claim, alleging 1-16-cv-07075 (VSB)(OTW) was determined by

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favouritism and corruption. See, Exhibit - B – Notice of claim.

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National Action Network is a well established organization which
deals with Civil rights advocacy. Headed by the Rev. Al Sharpton, NAN

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is accredited and accepted by most objective people as a bonafide civil
rights organization in the country, with a historic record of successfully

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advocating for people’s constitutional rights1. Contemporaneous with
this motion is a request to submit a letter motion which exceeds three

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pages.

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1 See, Abner Louimar, Mamadou Diallo, Sean Bell and Eleanor Bumpers matters.
DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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Case 1:16-cv-07075-VSB-OTW Document 274 Filed 09/29/22 Page 3 of 8

Need:

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The need to see evidence before advocating on a matter, for any

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civil rights organization, is a relevant and legitimate step for any

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reputable civil rights organization, here NAN2. See, argument infra.
This letter motion having reached out to New York Law

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department on April 1st, 2021 to see if it was opposed is unopposed.
This motion is not to unseal but to share with Derek Perkins, the
National Action Network field director a copy of photos which were
central to Mr. Diarra’s false arrest for “circumcision of genitalia.”

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Argument:

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(1) Mr. Diarra has a right to evidence held in Chambers
under Equal Protection Law:

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Pursuant to the Fourteenth Amendment’s Equal Protection clause
, stating that:
…No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United 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.

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2

NAN doe snot have a second
DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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Mr. Diarra has a right to obtain and adduce evidence in
proceedings to which he is a party as an extension of his right to equal

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protection. Here, NAN wishes to advocate for Mr. Diarra, this is a valid
public and advocacy reason. Any evidence that has a tendency to

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properly help in asserting his equal protection should be released for
this purposes only. See generally, Jencks v. United States, 353 U.S. 657

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(1957); Giglio v. United States, 405 U.S. 150 (1972); and Brady v.
Maryland, 373 U.S. 83 (1963).

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Here, Mr. Diarra is requesting to share copies of the photos with a
reputable Civil Rights Organization (NAN) before NAN engages in

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public advocacy on his behalf. Mr. Diarra has a right to this exculpatory
evidence for purposes and the nature of this advocacy. Id.

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The photos of the victim are exculpatory and show that Mr.
Diarra, arrested for “cutting clitoris” was falsely arrested as that never

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happened per photos. As such they fall within the broader holding of
Brady; that a person has a right to exculpatory evidence held by others.

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(2) Mr. Diarra Has a Substantive right (right to liberty)

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in These Proceedings Under Substantive Law:

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DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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Furthermore, pursuant to United States v. Carolene Products

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Company, 304 U.S. 144 (1938) (see footnote 4); stating the limits and

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process for substantive due process. The taking of the right3 to present
evidence, should comply with Carolene. The legal reasons for refusal of

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evidence from a branch of government, here Chambers, to give evidence
pertinent for Mr. Diarra’s advocacy should be clearly stated as to the

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necessity of that denial, given that these photos are relevant to a
rebuttal of a false arrest for “genital mutilation” in the public space by

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NAN.

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Relevancy of sealed photos4:
Photos of Mrs. Diarra were previously sealed by this office. See,

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sealing order - Exhibit C: sealing order.

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The photos are relevant under FRE 401 because they show that no

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rape kit was ever made at the time of the actual arrest / incident – no
photos of Mrs. Diarra were taken before the arrest - instead photos

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Mr. Diarra’s right to present evidence in his false arrest to NAN.

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4 The affirmation of the District Court’s order by the Second Circuit is not

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binding precedent and has little or no jurisprudential value, depending on
the District judge’s interpretation - rendering the District Court’s order in
the first Diarra matter non-binding precedent. By its nature, this order is
subject to a weaker standard of reversal should the summary order come under
review by a different panel of the Second Circuit or a different District
judge.

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DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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Case 1:16-cv-07075-VSB-OTW Document 274 Filed 09/29/22 Page 6 of 8

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showing, Mrs. Diarra’s healthy genitalia were then taken four-five
months later. However, Mr. Diarra was arrested for genital cutting.

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This fact is necessary for the advocacy work of Al Sharpton’s Action
Network, who deal in facts not innuendo.

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If this request is ignored, Mr. Diarra will be proceeding,
accordingly, with a writ of mandamus. However, should this motion be

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granted, then defendant counsel will organise a meeting with Mr. Derek
Perkins to show him a copy of photos, in person or via zoom. All copies

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will remain with defendant counsel as per sealing order and no codes
will be duplicated for NAN.

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DATED: LIVINGSTON, NEW JERSEY
April 9th, 2021

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Respectfully Submitted,

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/s/ Kissinger N. Sibanda
KISSINGER N. SIBANDA, ESQ.,
Attorney for the Plaintiff

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P.O Box 714
Livingston, NJ 07039

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Telephone: [phone]
Email: [e-mail]

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DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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Case 1:16-cv-07075-VSB-OTW Document 274 Filed 09/29/22 Page 7 of 8

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To:
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BY ECF

Honorable Vernon S. Broderick
United States District Court

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Southern District of New York

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40 Foley Square,

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Room 415 New York, NY 10007

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VIA ECF

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Cooperation Counsel - James Johnson

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New York Law Department

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Valerie E. Smith Esq (Assigned)

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Attorney for Defendant

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100 Church St.

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New York, NY 10007

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CC: COLLEN McMAHON

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United States District Court

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Southern District of New York

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40 Foley Square,

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Room 415 New York, NY 10007

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Chief judge SDNY.

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DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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Case 1:16-cv-07075-VSB-OTW Document 274 Filed 09/29/22 Page 8 of 8

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CERTIFICATE OF SERVICE:

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This is to certify that on April 9th, 2021, the defendant served opposing
counsel, via ECF, a copy of this letter motion, which is unopposed per
their response dated April 2nd, 2021.

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Cordially,

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/s/Kissinger N. Sibanda
Kissinger N. Sibanda

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Attorney for defendant

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DIARRA v. CITY OF NEW YORK 1:16-cv-07075 (VSB)(CLOSED)
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