Reply Brief — Donald Lee Hinton, Petitioner v. Walker, Recreation Supervisor, et al.

Supreme Court briefOct 24, 2018

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No. 17-9223

IN THE

SUPREME COURT OF THE UNITED STATES

DONALD LEE HINTON, PETITIONER,

V.

WALKER, RECREATIONAL SUPERVISOR, ET AL.

ON PETITIONER FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF

Donald Lee Hinton pro se

Lawrenceville Correctional Center

1607 Planters Road

Lawrenceville, Virginia 23868

I

NOV

ILSUPREME

OFFICE O

a

QUESTIONS PRESENTED

As framed in the petition for a writ of certiorari, see Petitioners Complaint the questions

presented are as follows:

Whether a reasonable doctor or patient would perceive the medical need in

question as "important and worthy of comment or treatment".

Whether the medical condition significantly affects daily activities.

The existence of chronic and substantial pain. Boretti v. Wiscomb, 930 F2d 1150,

1154-56 (6 th Cir. 1991) "holding needless pain that does not lead to permanent

injury is still actionable."

Whether the United States District Court failed to recognize Virginia State Law

enacted by the Virginia State legislature.

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TABLE OF CONTENTS

page

QUESTIONS PRESENTED ..................................................................................................ii

TABLEOF AUTHORITIES .................................................................................................iv

OPINIONSBELOW ..............................................................................................................1

JURISDICTION.....................................................................................................................2

STATEMENT........................................................................................................................2

ARGUMENT.........................................................................................................................8

CONCLUSION....................................................................................................................13

111

TABLE OF AUTHORITIES

Cases

Page

Adams v Rice 40 F3d 72, 75 (4th Cir 1994)....................................................................................................12

Banks v Nagle Nos. 3:07 CV 419-HEH, 3:09 CV 14 2009 WL1209031, at *3 (E.D. Va May 1, 2009)........13

Chandler v Cordova No. 1:09 CV 483 (LMB/TCB) 2009 WL 1491421, at *3 n.3 (E.D. Va May 26 2009)..13

Cortex Corp. v Catrett, 477 US 317,332 (1986)..............................................................................................11

Davis v District of Columbia. 158 F3d 1342, 1347 (D.C. Cir. 1998)...............................................................9

Estelle v Gamble 429 Us 97, 104-05 (1976) .............................................................................................4, 5

Flick vAlba 932 F2d 728,729(8th Cir. 1991) ...............................................................................................12

Garrett v Stratmen 254 F3d 946, 950 (10th Cir 200 1) .....................................................................................6

Henderson v Sheaham 196 F3d 839, 846 (7' Cir 1999) ..................................................................................5

Hutchins v McDaniels, 512 F3d 193, 196-98 (5th Cir. 2007) ......................................................................10

Ikov v Shreve 535 F3d 225, 241 (4th Cir 2008) ...............................................................................................5

Inglev Yelton (4th Cir. 2006) .........................................................................................................................12

In re Allen, 106 F3d 582, 592-97 (41 Cir. 1997) ..............................................................................................3

Jones v Brock, 549 US 199, 206 (2007) .........................................................................................................9

Jones v Wilhelm, 425 F3d 455, 461 (7th Cir. 2005) .........................................................................................3

Mata v Suiz 427 F3d 745, 751 (10th Cir 2005) ...............................................................................................6

Miller v Beorn 896 F2d 848, 857 (4t Cir 1990) .............................................................................................6

Nelson v Cal. Dept. of Corr., No CO2-547651 (pr), 2004 US Dist. LEXIS 4521, at *21 (N.D. Cal. Mar. 18,

2004)................................................................................................................................................................10

Oxendine v Kaplen 241 F3d 1272, 1276 (10th1 Cir 200 1) ................................................................................6

Plant v Given, 234 F.3d 1128, 1129 (1 O h Cir. 2000) ........................................................................................8

Richardson Knight, 521 US 399, 412, 117 S.Ct. 2100, 2108, 138 Led2d 540, 542 (1997) ......................3,8

iv

Rogers v Evans 792 F2d 1052, 1058 (11th Cir 1986)

.

6

Royal v Kautzky 375 F3d 720,723 (8u1 Cir. 2004) .........................................................................................10

Sellersv Herman .............................................................................................................................................4

Shabazz v Prison Health Services Inc. No 3:10 CV 190 2012 WL 442270 at *5 (E.D. Va. 2012) .................6

Thompson v Carter, 284 F3d 411,418 (2d Cir 2002) ...................................................................................10

Watt v Cole, 504 US 158, 159, 112 S. CT. 1827, 1829, 115 Ked2d 504, 509 (1992) .................................3,8

Webb v Humidullah 281 F. App'x 159, 165 (4th Cir 2008) .............................................................................6

Willingham v Cooke, 412 F3d 533, 559, 60 (4th Cir. 2005)..............................................................................3

Constitution, Statutes, Regulations and Rules

28 U.S.C. §1254 (1) .........................................................................................................................................1

42U.S.C.1997e(e) ...................................................................................................................................10

Code of Virginia (COV) §53.1-32, §53.1-40, §54.1-2986 ..............................................................................6

18 USA 242 .................................................................................................................................................10

Rule56 Summary Judgment .........................................................................................................................11

42USC1983................................................................................................................................................11

28USC1915(e)(2)(B) ...............................................................................................................................11

Rule56(b).......................................................................................................................................................11

Rule56 (e)(4)...................................................................................................................................................11

I.!4

No. 17-9223

IN THE

SUPREME COURT OF THE UNITED STATES

DONALD LEE HINTON, PETITIONER,

V.

WALKER, RECREATIONAL SUPERVISOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STA TES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. BI 9-B20) is not published in the Federal

Reporter but is reprinted at 691 Fed. Appx. 733. The memorandum opinion of the district

court dismissing the case (Pet. App. A4-A13) is unreported.'

'"Pet. App. A" will be used to refer to the appendix that begins with the Fourth Circuit judgment and

contains a handwritten note "Appendix IV" on the top left corner. "Pet. App. B" will refer to the additional

materials that were filed separately with the Office of the Clerk that begin with the district court's February

9, 2017 Memorandum Order and contains a handwritten note "Appendix II" on the top left corner. The

page numbers will reference the page in the PDF document at issue.

JURISDICTION

This court has jurisdiction under 28 U.S.C. §1254 (1) to obtain relief from the United States Court

of Appeals for the Fourth Circuit.

INTRODUCTION

Unknowingly, Donald Lee Hinton, sat on a bench which fell apart because the bolts were missing

causing "Physical Injury to his head, neck and back.

Hinton has witnesses to the incident, sergeants Malone, Finch and Duloath and inmates all saw the

bench fall when Hinton sat on it.

Sergeant Malone immediately took Hinton to medical for "Physical Injury" to his head, neck and back.

Nurse Moody, RN referred Hinton to Dr. Mililani. Mililani took twenty-six (26) days to see Hinton.

Twelve (12) days longer than Virginia Law and policy demands.

Fourteen (14) days to be seen by practitioner is Virginia law and policy.

Dr. Miliani immediately ordered X-rays and pain medication proving the seriousness of Hinton's

injuries.

Prior to Hinton's fall Sergeant Finch wrote a "work order" concerning the missing bolts from the bench.

Informing T. Walker, Recreation Supervisor.

STATEMENTS

Donald Lee Hinton, is a prisoner incarcerated at Lawrenceville Correctional Center 1607 Planters

Road Lawrenceville, Virginia 23868.

This concerns the Respondents incoherent arguments intentionally misleading the court on a host

of issues.

I. A.) Respondent's Brief In Opposition; page 2 "Respondents are various Virginia Department

of Corrections prison and medical officials (state officials)

pg 2 Number 1 "...The state official..." pg 3 "The state official..."

2

pg 3 "...governmental entity or officer or employee of a government entity..."

pg 5 "...[one of the state officials] pg 5 "...[the state official] pg 5 "...a different state official..."

The above is in conflict with fact because;

All Respondents are employees of Global Experts and Outsourcing Inc. (The GEO Group) a

private-for-profit prison group managing Lawrenceville Correctional Center.

NO Respondents are state government officials or employees.

Respondents are "private prison guards and private employees."

QUALIFIED IMMUNITY

No Respondents have qualified immunity or any other immunity who are employed by the GEO

Group Inc. a private-for-profit prison group, managing Lawrenceville Correctional Center 1607

Planters Road Lawrenceville, Virginia 23868.

This court in Richardson v Knight, 521 Us 399, 412, 117 S.Ct. 2100, 2108, 138 Led2d 540, 542

(1997) "holds that prison guards at a privatized prison are not entitled to qualified immunity unlike

prison guards who are employed by the government; "also holding there is no reason to grant private

guards government immunity."

Watt v Cole, 504 US 158, 159, 112 S. CT. 1827, 1829, 115 Ked2d 504, 509 (1992) "concluding

that the rational mandating qualified immunity for public officials are "NOT" acceptable to private

parties.

"Official who acts completely outside the scope of her authority as clearly limited by statutes and

regulations is NOT entitled to immunity" In re Allen, 106 F3d 582, 592-97 (41h Cir. 1997).

Officials who violate regulations or state law loose their immunity, because they are no longer performing

discretionary function.

"Willful Ignorance"; requiring actual knowledge of relevant facts to overcome immunity in all cases

would allow state actors to "trample" on the constitutional rights of citizens by maintaining willful ignorance"

Jones v Wilhelm, 425 F3d 455, 461 (7th Cir. 2005)

.the question of qualified immunity should be decided by a jury" Willingham v Cooke, 412 F3d 533,

559,60 (4(h Cir. 2005)

The Office of the Attorney General or Solicitor General has NO jurisdiction nor authority to

represent private-for-profit prison guards or employees.

The Office of the Attorney General or Solicitor General represents only the Commonwealth of

Virginia and its employees. Not private prison guards or employees of for-profit-prisons.

This would be the same as the government representing a Walmart employee.

D.) This Writ of Certiorari must be GRANTED on this Virginia Government's action.

This is why Hinton will win.

II. Claims related to unsafe conditions of confmement.

Respondent's Brief in Opposition page 5. "The district court noted that the majority of [the]

language[in petitioner's complaint] is tailored to state law negligence."

This statement is in conflict with fact because; Hinton states "Deliberate Indifference" Eleven (11)

times in his twelve (12) page complaint.

Hinton's complaint; pg 3 1. 23 "Finch's Gross Negligence and "Deliberate Indifference"

pg 4 1. 33 "Walker's Gross Negligence and "Deliberate Indifference"

pg 4 1. 38 Estelle v Gamble 429 Us 97, 104-05 (1976) "We therefore conclude that "Deliberate

Indifference..."

pg 5 1. 47 "...the delay in access to the doctor "Deliberate Indifference"

pg 5 1. 48 Sellers v Herman explaining "It is vital to keep negligence and "Deliberate

Indifference" apart..."

pg 6 (part of section 48) "One way to prove that an official acted with "Deliberate Indifference"..."

pg 6 (part of section 48)

"...

as a pattern the acts show that "each act" was committed with

"Deliberate Indifference"

pg 6 1. 49 "...and twenty-six (26) acts of "Deliberate Indifference"

pg 10 1. 105 "This "ADMISSION" is prima fade evidence of Finch's "Deliberate Indifference"

pg 10 1. 107 "This knowingly is prima facie evidence of Walker's "Deliberate Indifference"

pg 111. 112 "The twenty-six (26) day delay is prima fade evidence of Mililani's "Deliberate

Indifference"

The district court is wrong.

It is clear from Hinton's complaint "Deliberate Indifference" is the central theme in the majority of

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the language in Hinton's complaint.

This is why Hinton will win.

III. Claims related to medical care.

Respondent's Brief in Opposition

Hinton agrees he was immediately taken to medical and seen by a nurse.

Sergeant Malone, a lay person, recognized Hinton needed to see the doctor and took him to

medical immediately. Malone witnessed the bench breaking with Hinton falling back; injuring his

head, back and neck.

Twenty-six (26) days later Dr. Mililani ORDERED X-Rays for Hinton for (i) head injury; (ii) C+ L Spine;

(iii) lower Lumbar spine; (iv) neck cervical areas.

Dr. Malilani ordered Baclofen, Mobic, Ibuprofen and Tylenol. All pain medication. Hinton was in

excruciating pain.

Dr. Malilani's orders are enough to show a serious medical need.

This District Court holds in this case; "With respect to the denial of adequate medical care, "a

prisoner must allege acts or omissions sufficiently harmful to evidence of deliberate indifference to

serious medical needs." Estelle v Gamble supra "A medical need is "serious" if it "has been diagnosed

by a physician as mandating treatment or that it is so obvious that even a lay person would recognize

the necessity for a doctor's attention." Ikov v Shreve 535 F3d 225, 241 (4th Cir 2008)(quoting

Henderson v Sheaham 196 F3d 839, 846 (7th Cir 1999)

pg 5 "Although petitioner disagree[d] with the timing of seeing the doctor the district court

concluded that petitioner failed to demonstrate any deliberate indifference to a serious medical need by

the delay in seeing the doctor."

This statement is a deliberate attempt at misdirection and is in conflict with fact.

Hinton is stating Virginia state law and policy not merely disagreeing.

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Operating Procedure (OP) 720.1 ACCESS TO HEALTH SERVICES: Authority Code of Virginia

(COV) §53.1-32, §53.1-40, §54.1-2986 (B) Health Care Complaints

3 (a) "For medical complaints deemed to be urgent, a referral shall be made for the offender to see

a medical practitioner, and the offender will bee seen by the practitioner with in seventy-two (72) hours

of the referral.

(b) If the medical complaint is determined to be routine and referral to medical practitioner is

deemed indicated the offender will be seen by the medical practitioner within two (2) weeks of referral."

Hinton did not see the doctor for twenty-six (26) days. Twelve (12) days past the two (2) weeks

Virginia state law and policy demand.

The District Court and the Court of Appeals for the Fourth Circuit ignored Virginia Law and policy.

This District Court holds in this case; "In the context of delay medical care, the objective prong

analysis does not end there. In addition to demonstrating that a medical need that was objectively

serious, a plaintiff must also establish that the delay in the prevision of medical care "resulted in

substantial harm." Mata v Suiz 427 F3d 745, 751 (10th Cir 2005)(quoting Oxendine v Kaplen 241

F3d 1272, 1276 (10th Cir 2001); see Webb v Humidullah 281 F. App'x 159, 165 (4th Cir 2008) "the

substantial harm requirement may be satisfied by life long handicap, permanent loss, or considerable

pj." Shabazz v Prison Health Services Inc. No 3:10 CV 190 2012 WL 442270 at *5 (E.D. Va.

2012)(quoting Garrett v Stratmen 254 F3d 946, 950 (10th Cir 2001)

With respect to the subjective prong [t]o establish that a health care provider's actions constitute

deliberate indifference to a serious medical need, the treatment must be so grossly incompetent,

inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness." Miller

v Beorn 896 F2d 848, 857 (4th Cir 1990)(citing Rogers v Evans 792 F2d 1052, 1058 (11th Cir 1986)"

Delay of care Substantial harm Objective prong

The fact that Dr. Mililani ordered Baclofen, Mobic, Ibuprofen, Tylenol and X-rays twenty-six (26)

days after the fall is sufficient to establish prima facie evidence Hinton was in considerable pain the

entire twenty-six (26) days and would be in the future. The objective prong.

The fact that twenty-six (26) days passed. When Virginia law and policy states fourteen (14) days

to see the practitioner in OP 720.1 ACCESS TO HEALTH SERVICES B (3)(b) above,is prima facie

evidence of "Deliberate Indifference."

Hinton was in excruciating pain. The objective prong.

Subjective prong: Ninety (90) days Respondent's told Hinton it would be before his X-rays would be read.

Twenty-six (26) days to see the practitioner. Nearly twice as long as Virginia law and policy

demands; just for Hinton to see the doctor.

Fourteen (14) days to see the practitioner is Virginia law and policy stated in OP 720.1 above.

Hinton has Degenerative Disc-disease needing surgery. The fall compounded this issue. Hinton is

worse now than before the fall. All this time Hinton was in excruciating pain. The subjective prong.

For the district court to say twenty-six (26) days is not long to wait for medical care is egregious.

Walk in Hinton's shoes.

The district court is not a Health Care Facility and should not practice medicine from the bench.

Respondents Brief in Opposition Pg. 5 "Second the district court reasoned that petitioner did not allege that

the doctor in question knew of petitioner's condition before seeing petitioner or that petitioner received

inappropriate treatment."

Respondents did not read or could not comprehend Hinton's complaint.

Hinton filed ten (10) requests and two (2) grievances. Twelve (12) times Hinton attempted to receive

medical treatment but was refused.

Four (4) months Hinton suffered in excruciating pain.

It is irresponsible for Respondents to say the doctor did not know about Hinton's "Physical Injury"

Respondent's Brief in Opposition Pg 6 "...petitioner failed to describe with sufficient specificity any

injuries resulting from the fall, nor did petitioner allege any injury from the delay in seeing the doctor.

This statement is also in conflict with fact. It is as if Respondents did not read or could not

comprehend Hinton's complaint.

A.) Pet. Com. pg 3 1. 27 "...Donald Lee Hinton sat on the bench and fell back injuring his head, neck

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and back needing immediate medical treatment."

pg 7 1. 61 "Sergeant Malone, Finch and Dulouth and inmates all saw the bench fall when Hinton sat

on it."

pg 7 1. 62 "All saw Hinton injure his head, neck and back sever enough for Sergeant Malone to take

Hinton to medical."

pg 7 1. 70 "Because Hinton complained of head, neck and back pain Malone took him to medical."

pg 10 1. 103 "Unknowingly, Donald Lee Hinton sat on a bench that fell apart because the bolts were

missing causing Hinton "Physical Injury" to his head, neck and back."

pg 10 1. 106 "Recreation Supervisor, Walker had actual knowledge of the "work order" enacted by

Sergeant Finch stating bolts were missing from the bench before Hinton sat on it and fell back injuring his

head, neck and back."

pg 111. 109 "Doctor Miliani knew about Hinton's head, neck and back injury but failed to act for

twenty-six (26) days."

ARGUMENT

The district court erred in treating this case as if Respondents were government employees.

All Respondents are employees of the GEO Group a "private-for-profit-prison group managing

Lawrenceville Correctional Center.

This court in Richardson v Knight, supra. and Watt v Cole, supra., the Respondents have no

Qualified or any other type or immunity because they are all private guards and staff.

The district court sua sponte dismissal in constitutionally defective because Respondents are not

government employees but private guards and staff employed by the GEO Group.

A sua sponte action only applies to a governmental entity, officer or employee, not private guards

or staff.

Plant v Given, 234 F.3d 1128, 1129 (101h Cir. 2000) holding the power to dismiss "applies to all

prison litigants, without regard to their fee status, who brings civil suits against a "governmental entity,

officer or employee".

Not private guard or staff.

Hinton's claims are not frivolous or malicious. Respondents "ADMITTED" they knew the bolts

were missing from the bench, because they filed a "work order" prior to the bench breaking with

Hinton causing "Physical Injury".

Respondents "ADMISSION" to this knowledge is prima facie evidence of "Deliberate

Indifference" and a culpable state of mind.

If Respondents cared about Hinton's Health and Safety they would have secured the bench

preventing Hinton for sitting on it causing him "Physical Injury". The took no such action.

The Prison Litigation Reform Act (PLRA) changed various parts of the United States Code that

addresses civil rights litigation and informa pauperis proceedings. The PLRA is designed to make it

harder for prisoners to file complaints in Federal Courts.

This court holds; the screening requirement "does not explicitly or implicitly justify deviating from

the usual procedural practice beyond the departures specified by the PLRA itself." Jones v Brock, 549

US 199, 206 (2007)

Since Hinton's right to fix badly written complaints without even asking the court's permission if

an answer had not been filed; is part of the "usual procedural practice."

The district court must allow Hinton to fix his complaint. Not simply sua sponte dismiss it.

See Fed. R. Civ. P. 15(a)

Davis v District of Columbia, 158 F3d 1342, 1347 (D.C. Cir. 1998) "The court determined 1997 e(e)

had no restrictive effect on claims for declaratory relief; it merely limited the availability of damages."

Hinton is not claiming mental or emotional injury.

Hinton injured his head, neck and back. "Physical Injury"

The order of X-rays by Dr. Malilani is enough to prove Hinton's medical needs are serious.

"A mixture of injuries short of visible damage to body parts satisfies §1997 e(e).

Royal v Kautzky 375 F3d 720,723 (8th Cir. 2004) "Finding that because plaintiffs claim did not

involve mental or emotional injury the PLRA did not bar him from seeking.. .punitive damages..."

Hutchins v McDaniels, 512 F3d 193, 196-98 (5th Cir. 2007) "holding that plaintiff could

recover... punitive damages despite §1997 e(e).

Nelson v Cal. Dept. of Corr., No CO2-547651 (pr), 2004 US Dist. LEXIS 4521, at *21 (ND. Cal.

Mar. 18, 2004) "the plaintiff complained of being provided only boxer shorts and T-shirt for outdoor

exercise in cold weather." The court said, "Even if Nelson's complaint does not include a request for

damages for mental and emotional injury, it also includes a claim for an Eighth Amendment violation

as to which the Section 1997e(e) requirement "does not apply". In other words, damages are available

for a violation of his Eighth Amendment rights without regard to his ability to show physical injury."

"Courts have separately recognized a variety of constitutional injuries that are neither physical nor

mental and emotional. Section 1997e(e) does not affect such injuries." Thompson v Carter, 284 F3d

411, 418 (2d Cir 2002)

The district court's grounds for dismissing Hinton's claims are constitutionally defective.

18 USA §242 (2006) makes it a crime for someone acting under color of state law to deprive

another person of their federal civil rights. Section 242 requires a showing of "bodily injury".

If bodily injury results from the acts committed in violation of this section respondents shall be

fined under this title or imprisoned not more then ten years or both."

Respondents acted with intentional "Deliberate Indifference" because they "ADMITTED" they

knew bolts were missing from the bench causing Hinton "Physical Injury". An Eighth Amendment

violation.

The district court erred in treating Respondents as government employees. They are private guards

and employees of The GEO Group Inc.

The district court erred in dismissing Hinton's claims without giving him an opportunity to fix

10

them in violation of the PLRA and Rule 56 Summary Judgment.

The Fourth Circuit erred affirming the district court's dismissal.

In an unpublished per curium the Fourth Circuit stated,. "Petitioner appeals the district court's

order dismissing his 42 USC §1983 (2012) complaint under 28 USC §1915 (e)(2)(B) (2012). We have

reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the

district court.

The district court erred as stated above meaning the per curium of the Fourth Circuit is in error.

28 USC 1915 e (2)(B) (2012) does not apply.

Rule 56 Summary Judgment; 56 (d) When Facts Are Unavailable To The Non-Movant

If a Non-Movant shows by affidavit of declaration that for specific reasons it cannot present facts

essential to justify its opposition the court may;

defer considering the motion or deny it

allow time to obtain affidavits or declarations or to take discovery or

issue any other appropriate order.

Advisory committee; in our view, the plain language of Rule 56 (c) mandates the entry of Summary

Judgment "after adequate time for discovery" and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party's case, and on which

that party will bear the burden of proof at trial. Cortex Corp. v Catrett, 477 US 317,332 (1986)

Rule 56 (b): The timing provisions in former subdivisions (a) and (c) are superseded.

Although the rule allows a Motion for Summary Judgment to be filed at the commencement of an

action, in many cases the motion will be premature until non-movant has had time to file a responsive

pleading or other pretrial proceedings have been had.

Rule 56 (e)(4) "Many courts take extra care with p

litigants, advising them of the need to

respond and the risk of losing by summary judgment if an adequate response is not filed. And the court

may seek to reassure itself by some examination of the record before granting summary judgment

against a pro se litigant.

In order to contest the motion Hinton is required to file counter-affidavits or other evidentiary

11

material that establish a dispute over material facts.

When the party seeking summary judgment has the burden of persuasion at trial, the court will

grant the burdened party summary judgment on its claim in the absence of contradiction or some

tangible impeachment.

The witnesses, documents and other information Hinton is seeking are the "tangible prima facie

evidence for impeachment.

In the event that the Motion for Summary Judgment is filed before the non-movant has had

sufficient time to complete discovery and fairly respond to the motion, the court is empowered to defer

the decision on summary judgment until the non-movant has had ample time to complete discovery and

respond to the motion.

"The court is required to view the information provided by the Movant and Non-Movant in light

most favorable to the Non-Movant, taking all inferences and resolving all issues of credibility in favor

of the Non-Movant."

Where the facts are in the possession of the moving party a continuance of the Motion for

Summary Judgment should be granted as a matter of course. Ingle v Yelton (4t11 Cir. 2006)

Where the claimants, description of the events suggests that the defendants conduct was

unreasonable, and the facts that the defendants claim are dispositive are solely within the knowledge of

the and their collaborators. Summary Judgment can rarely be granted without allowing the Plaintiff an

opportunity for discovery as to the questions bearing on the defendant's claims.

No Constitutional Right To Grievance Procedure

This concerns the (i) Prison Litigation Reform Act (PLRA), Exhaustion Requirement; (ii) First

Amendment Right to petition the government for a redress of grievances; (iii) 4' Circuit and other

courts, determined Hinton has no constitutional right to participate in a grievance proceeding.

Question #1

If the First Amendment of the United States Constitution gives Hinton the right to petition the

government for a redress of grievances, and the PLRA requires that he exhaust all his administrative

remedies before he can file a Section 1983 but, the Circuit and other courts say "There is no

constitutional right to participate in grievance proceedings" Adams v Rice 40 F3d 72, 75 (4th Cir

1994) (citing Flick v Alba 932 F2d 728, 729 (8th Cir. 1991).

"Moreover, a prison official's failure to comply with grievance procedures is not actionable under

12

section 1983" See e.g. Chandler v Cordova No. 1:09 CV 483 (LMB/TCB) 2009 WL 1491421, at *3

n.3 (E.D. Va May 26 2009)

"Because a state's grievance procedure confers no substantive rights upon prison inmates, a prison

official's failure to comply with the grievance procedure is not actionable under Section 1983...)' Banks

v Nagle Nos. 3:07 CV 419-HEll, 3:09 CV 14 2009 WL1209031, at *3 (E.D. Va May 1, 2009)

then what vehicle does Hinton use to petition the government for a redress of grievances under the First

Amendment guarantee and requirement of the PLRA, if not the Offender Grievance Procedure 866.1?

Question #2

If prison official's failure to comply with grievance procedures is not actionable under Section

1983 then what is their failure to comply actionable under and what relief is available?

Question #3

Isn't it true because there is no constitutional right to a grievance procedure then the Virginia

Department of Corrections must do away with Operating Procedure 866.1 Offender Grievance

Procedure because it has no value serving no purpose?

Question #4

Isn't it true because there is no constitutional right to a grievance procedure then the Virginia

Department of Corrections must also do away with the position of Ombudsman (Grievance

Coordinator) at the Local Facility, Region, the Richmond Office and all related positions?

Question #5

Isn't it true funding for an Ombudsman and related positions is misappropriations of funds because

(i) there is no constitutional right to a grievance procedure; (ii) they have no value serving no purpose;

or (iii) prison officials failure to comply with grievance procedures is not actionable and there is no

recourse when they fail to follow policy?

Question #6

Then why go through the farce, in Virginia, of filing an Informal Complaint, Regular Grievance,

Intake Appeal; when Hinton has "NO" constitutional right to a grievance procedure?

Hinton cannot exhaust something he has no right to.

CONCLUSION

Neither the Office of the Attorney General nor Solicitor General has jurisdiction of authority to

represent private-for-profit prison guards or employees.

There are many issues of disputed material facts described above.

13

The court is required to view the information provided by the Movant and NonMovant in light most favorable to the Non-Movant, taking all inferences and resolving all

issues of credibility in favor of the Non-Movant.

The petition for Writ of Certiorari should be GRANTED for the reasons stated

above or appoint competent counsel for oral arguments.

Submitted this 24' day of October 2018.

Respectfully,

cX)C L.4rk

Donald Lee Hinton pLo se

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