No. 08-

____________________________________________________

UNITED STATES COURT OF APPEALS
FOR THE EASTERN DISTRICT OF WISCONSIN
_____________________________________________________

DARRYL KINNEY,
Plaintiff-Appellant,

v.

INTERNAL REVENUE SERVICE
U.S. DEPT. OF JUSTICE,
Defendant-Appellee.

_____________________________________________________

Appeal From the United States District Court
For the Easternn District of Wisconsin,
Case No. 08-C-0460
The Honorable Judge Charles Clevert Jr.

______________________________________________________

BRIEF AND REQUIRED SHORT APPENDIX OF
PLAINTIFF-APPELLANT, DARRYL KINNEY
______________________________________________________

DARRYL KINNEY
PLAINTIFF –APPELLANT
PRO SE- DARRYL KINNEY

7301 98TH AVE
KENOSHA, WI 53142
262-237-1310

TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. ii

STATEMENT OF THE ISSUES PRESENTED . . . . . . . . . . . . . . . . .. . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . ....2

Civil Code & Rights….……….. . . . . . . . . . . . . . . . . . . . . . . . . .. ….2,3

Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……….5

3. Proceedings below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ………..12

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . ...13

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ...14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …..15

CERTIFICATE OF SERVICE

i

TABLE OF AUTHORITIES

CASES PAGE

Desert Palace,Inc. v. Costa, 123 S.Ct. 2148, 2155(2003).............................................3

United States v. Crukshank, 92 U.S. 542, 552 (1876)...................................................3

De Jonge v. Oregon, 299 U.S. 353,364 (1937).............................................................3.

Borse, 963 F.2d at 621.................................................................................................2.

Smoth, Sheriff v. Goguen, 415 U.S. 566 573, 39 L. Ed 2d 605, 94 S. Ct 1242(1974)...4

Villiage of Hoffman Estates v, Flipside Hoffman Estates, Inc. 455 U.S.

489, 71 L/ Ed. 2d 362, 102 S. Ct. 1186(1982).............................................................3.

STATUTES PAGE

Id. at 768………………………………………………………..……….5-8
428 F. Supp. 763(C.D. Cal. 1977)…………………………………..….1-8
42 U.S.C.A. § 2000e-5(g)(1974)…………………………………….…1-11
42 § 2000e-3(a)………………………………………………………....1-11
42U.S.C. §1981…………………………………………………………1-11
§ 409…………………………………………………………………….1-11
§ 417……………………………………………………………………..4-6
§ 400…………………………………………………………………….…5
§ 2.10(d)……………………………………………………………….…..7
§ 302……………………………………… . . . . . . . . . . . . . . . . . . . . . ..1-10
§ 444………………………… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
§§ 412-415………………………………………………………………4-8
§§ 417-420…………………………………………………………………8
§ 420……………………………………………………………………….8
42 U.S.C.A. § 2000E-3(a)………………………………………………1-11
411F.2d at 1005…………………………………………………………5-7
417 U.S. at 550………………………………………………………….1-11
M.S. § 609.749, Subd. I…………………………………………………. 5
§ 2.10 Retaliation under Title VII……………………………………............7
WI § 940.32 Stalking. Amended 2005..................................................
ii

STATEMENT OF THE ISSUES PRESENTED

1. Whether it was proper for the district court to dismiss the Plaintiffs

complaint as moot, when the rights of every citizen is at risk if so. When

Government agencies abuse the power given to them against American citizens

that are to be used in terrorist situations, by using the military and internet as

well as Police harassment?

2. Whether it was proper for the district court to not appoint an Attorney when

one was requested by the Plaintiuff, when the Plaintiff sent the Amended

complaint in the deadline time, if it did not meet the process the court wanted

them the Attorney should have been appointed as requested?

3. Whether discrimination is a factor because the Agencies involved would have

no where enough resources if these actions were used on every American in any

Class, as this Plaintiff is an African American an is entitles to protection under

this class?

4. Whether an investigation can violate the Laws of Civil Rights as well and

Employment interference, and placing a child into and abusive situation to make

the outcome or attempted outcome what they want it to be?

1

STATEMENT OF THE CASE

1) Recovery of punitive damages is governed by Civil Code

section 3294, which was amended to define "malice, fraud or

oppression" as "despicable" conduct carried on with a conscious awareness that

it will violate the plaintiff’s rights. The procedural hurdles section 3294 raises to

the recovery of punitive damages apply in wrongful termination/ public policy

cases, as well as in independent tort cases, discussed below.
The reviewing court must consider only those facts alleged in the Complaint and
The Court of Appeals in Borse, observed that one of the torts which Pennsylvania
recognizes as encompassing an action for invasion of privacy is the tort of "intrusion
upon seclusion." As noted by the Court of Appeals, the Restatement (Second) of
Torts defines the tort as follows:
One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person accept all
of the allegations as true. Liability only attaches when the "intrusion
is substantial and would be highly offensive to the 'ordinary
reasonable person.'" Borse, 963 F.2d at 621.

2

"We note that the Supreme Court recently held that under the current language of

Title VII . . . a plaintiff may be entitled to a mixed motive jury instruction without

presenting direct evidence of discrimination if he or she shows that discrimination

was a 'motivating factor' in the adverse employment decision. See Desert Palace,

Inc. v. Costa, 123 S.Ct. 2148, 2155(2003) 704 (a) of the Civil Rights Act of 1964,

42 U.S.C. 2000e-2 (a) (1) and 2000e-3 (a). 4 (411 U.S. 792, 797) 

2) The Right to Petition the government requires stringent protection. "The very

idea of a government, republican in form, implies a right on the part of its citizens

to meet peaceably for consultation in respect to public affairs and to petition for

a redress of grievances. "United States v. Crukshank, 92 U.S. 542, 552 (1876)

3) Except in the most extreme circumstances citizens cannot be punished for

exercising this right :without violating those fundamental principles of liberty

and justice which lie at the base of all civil and political institutions." De Jonge

v. Oregon, 299 U.S. 353,364 (1937)

3) The seminal case concerning pre- wnforcement facial challenges on the grounds

of vagueness in Villiage of Hoffman Estates v, Flipside Hoffman Estates, Inc. 455

U.S. 489, 71 L/ Ed. 2d 362, 102 S. Ct. 1186(1982) The Flipside court determined that

when a court examines such a challenge, :assuming the enactment implicates no

constitutionally protected conduct. (the court) should uphold the challenge only if

the enactment is is impermissibly vague in all of its applications." Id. 495

(emphasis added).

3

Although the Supreme Court does not state precisely what it means

by" constitutionally protected conduct," it is clear that it is referring primarily

to the First Amendment expressive freedoms, which have long received

special protection in vagueness cases. See e.g. Smoth, Sheriff v. Goguen,

415 U.S. 566 573, 39 L. Ed 2d 605, 94 S. Ct 1242(1974)

4

FACTUAL BACKGROUND

1) Petitioner is entitled to relief in the form of compensatory and punitive

damages primarily based rights afforded every American citizen, we are all

afforded a right to work and take care of our families and have no interfernce in

a descent quality of life, as a right and not a gift. The right to work without

interference to demoralize an citizen if America, while putting forth a military

type harrassment driven situation while keeping a child in an abusive home to

prevent an American citizen from leaving the States to continue the defamatory

harassment.

2) Darryl Kinney is an African American citizen, raised in a Marine home, and

like any other juvenile has had an occasional brush with the law, but has since in

the area of 25 or so years continued his education and worked to have the life

that any other American citizen seeks and works for.

3) Darryl Kinney can truthfully state that in all his employment he has always

given 100%, but has had outside sources dictate what actually happens at my

employers offices( the defendants)

4) Darryl Kinney has had to stand by and watch his family being told not to

communicate with him and outright lie on him to aid these agencies in a

governments attempt at burning him .M.S. § 609.749, Subd. I

5) Darryl Kinney has filed Complaints with every Federal agency available

and had them interferewd with the lead the decisions to a dismissed verdict,

all services have been tampered with including local law enforcements (Police)
5

6) Darryl has had his telephones tapped, and had people answer it when he first
turned it on and it was'nt him, he has had his computer hacked and emails and faxes
faked or stopped by the actions of the Defendants.He has had his daughter
questioned in school and forced to not tell the truth because of this situation, placed
in play by these gov agencies, Dept. of Justice and the I.R.S. Darryls privacy has
been ended by the military from house buggings to cell phone scanning and computer
hacking, he has been followed daily once he leaves the house all day everyday, no matter
where he goes. Darryl has had his jobs told to terminate him with lies to help them
follow him around and then the EEOC was told not to do the appropriate job in
giving justice by these agencies.
7) Jada Kinney has been asked to forget the abuse, and been bought toys and kept
from school to aid in the brainwashing of a minor and bwwn asked to lie about the
things she has seen, been involved in and heard. Which was an direct ir indirect result
lrd from actions of one or both organizations or Defendants.
8) Darryl and Jada have had their lives watched in the home as well as outside of it.
9) Darryl has been to Washington, D.C. and contacted several Senators as well as
police and multiple agencies for assistance with these problems to find that Americans
are being treated like second class citizens by Americans.

6

3. Proceedings Below
On , May 23, 2008 Plaintiff Darryl Kinney and Jada Kinney filed his complaint of
Discrimination, Harassment and Stalking against Defendants.. Plaintiff’s complaint
states three claims- (1) race discrimination in violation of Title VII,
(2),M.S. § 609.749, Subd. I and (3) WI § 940.32 Stalking. Amended 2005
Plaintiffs ask thecourt to grant Plaintiff appropriate injunctive relief, lost wages,
liquidated/double damages, front pay, compensatory damages, punitive damages,
prejudgment interest, post-judgment interest, and costs.
On , June 19, 2008 Plaintiff filed an amended Complaint for
. Plaintiffs motion was denied.

7

SUMMARY OF ARGUMENT
The reviewing court must consider only those facts alleged in the Complaint and
The Court of Appeals in Borse, observed that one of the torts which Pennsylvania
recognizes as encompassing an action for invasion of privacy is the tort of "intrusion
upon seclusion." As noted by the Court of Appeals, the Restatement (Second) of
Torts defines the tort as follows:
One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person accept all
of the allegations as true.
Liability only attaches when the "intrusion is substantial and would
be highly offensive to the 'ordinary reasonable person.'" Borse, 963
F.2d at 621.
Recovery of punitive damages is governed by Civil Code section 3294, which
was amended to define "malice, fraud or oppression" as "despicable"
conduct carried on with a conscious awareness that it will violate the
plaintiff’s rights. The procedural hurdles section 3294 raises to the recovery
of punitive damages apply in wrongful termination/ public policy cases, as
well as in independent tort cases, discussed below.

8

§ 940.32 Stalking. Amended 2005.
(1) In this section:
(a) "Course of conduct" means a series of 2 or more acts carried out over
time, however short or long, that show a continuity of purpose, including any
of the following:
1. Maintaining a visual or physical proximity to the victim.
2. Approaching or confronting the victim.
3. Appearing at the victims workplace or contacting the victims employer or
coworkers.
4. Appearing at the victims home or contacting the victims neighbors
5. Entering property owned, leased, or occupied by the victim.
6. Contacting the victim by telephone or causing the victims telephone
or any other persons telephone to ring repeatedly or continuously, regardless
of whether a conversation ensues. 6m. Photographing, videotaping, audiotaping,
or, through any other electronic means, monitoring or recording the activities of
the victim. This subdivision applies regardless of where the act occurs.
7. Sending material by any means to the victim or, for the purpose of obtaining
information about, disseminating information about, or communicating with the
victim, to a member of the victims family or household or an employer, coworker,
or friend of the victim.
8. Placing an object on or delivering an object to property owned, leased, or
occupied by the victim.
9. Delivering an object to a member of the victims family or household or an
employer, coworker, or friend of the victim or placing an object on, or delivering

9

an object to, property owned, leased, or occupied by such a person with the intent
that the object be delivered to the victim.
10. Causing a person to engage in any of the acts described in subds. 1. to 9.

10

ARGUMENT
The district court improperly dismissed Plaintiffs Comp[laint.
Defendants conspiracy to commit civil rights violations and fraud.
The Distict court erred in its decision to dismiss the Complaint
that was filed timely and did requst the Appoinment of an Attorney
for any procedural mishaps that may occur. These agencies have
abused their power to keep the Plaintiff in a Terrorist type confinement
situation.

11

Conclusion
For the reasons set fourth above, this Court should reverse the district
courts decision because if these actions are allowed to continue then we
as a civilized nation are no better than the oppressors in other countries.
Respectfully submitted,
_____________________
DARRYL KINNEY
Pro Se Plaintiff
7301 98th Ave
Unit D
KENOSHA, WI 53142

12

CERTIFICATE OF SERVICE

I hereby certify that, on Aug , 2008, I mailed the Brief of Darryl Kinney Pro Se,

Plaintiff to the appellees by sending a floppy disk copy, by

mail delivery, to:

I.R.S.
545 ZOR SHRINE PL.
MADISON, WI 53719 608-829-5827

U.S. DEPT OF JUSTICE
114 E. CAPITAL (ATTORNEY GENERALS OFFICE)
MADISON, WI 53707 608-266-1221

13

SINCE THESE ACTIONS THE DOJ HAS ASKED JUDGES TO BE MORE CORRUPT THAN USUAL AND STOPPED ME FROM GETTING FEDERAL HELP LIKE THE REST OF AMERICA AND ARE TRYING TO ISOLATE ME FROM ANY OUTSIDE COMMUNICATIONS, FAKE OPERATORS AND PHONE CALLS INTERVEIWS ETC.