Petition for Writ of Certiorari — William Womack, Petitioner v. Landan Adams, et al.

I

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CASE NO.

IN THE

SUPREME (X)URT OF THE UNITED STATES

WULIAN W014ACK,

Petitioner,

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vs

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IANDOt ADAM , RICBARD ZARAGOZA,

JOHN OR JANE DOES 1-5, JOHN OR

JANE DOES 6-10,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

FOR A WRIT OF CERTIORARI

William Womack #354117 RB-205

Paralegal and Pro Se Petitioner

Washington State Penitentiary

1313 N. 13th Ave.

Walla Walla, WA 99362

FR~ECEI

JUL 312018

QUESTION(S) PRESENTED

A. WHEtHER THE NINTH CIRCUIT COURT OF APPEALS HAS JURISDICTION TO REVIEW THE

DISTRICT (X)URTS ERRONEXXJS DECISION IN GRANTING SUMMARY JUDGMENT' PURSUANT

10 28 U.S. CONST. §1291?

1.

SUMMARY JUDGMENT?

C. WHETHER THE COURT OF APPEALS HAS JURISDICIION TO REVIBJ THE OTHER SEVEN

ISSUES RAISED IN APPELLANT'S NOTICE OF APPEAL LEADING 10 THE ERRONFL)US

GRANTING OF SUMMARY JUDGMENT?

WRIT OF CERTIORARI -, iv

4.-

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

[X] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

John or Jane Does 1-10 have not been identified because Defendants

refused to identify them in the discovery process.

Defendant Israel "Roy" Gonzalez was added in the third and fourth amended

complaint pursuant to contributing to Defendant Zaragoza's retaliative actions

inrejecting Plaintiff's third "new" book and being responsible for the final

decision in rejecting the third new book.

The district court did not rule on granting either the third or fourth

amended complaint, however, addressed the claims in the third and fourth

amended complaint in the erroneous decision in granting defendants' summary

judgment motion. The only difference in the third amended complaint and the

fourth amended complaint was addressing the change in the Secretary of DOC

which changed three times in the course of litigation whom was sued in his

official capacity for injunction relief. See ECF Nos. :94M 102.

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7

TABLE OF CONTENTS

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

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................

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

3

REASONS FOR GRANTING THE WRIT...........................................................................13

CONCLUSION....................................................................................................................

INDEX TO APPENDICES

APPENDIX A

ORDER OF DISTRICT COURT GRANTING SUMMARY JUDGMENT

APPENDIX B

PETITION FOR PANEL REHEARING WITH ATTACHED COA ORDER

DISMISSING APPEAL

APPENDIX C

COA ORDER DENYING MOTION FOR PANEL REHEARING

APPENDIX D

APPENDIX E

APPENDIX F

WRIT OF CERTIORARI -i

22

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

City & Cnty of San Francisco v. Sheehan, 191 L. Ed. 2d

856, 135 S. Ct. 1765, 2015 U.S. LEXIS 3200......... . . . . . 13

Cuozzo Speed Technology v. Lee, 195 L. Ed. 2d 423,

2016 U.S. LEXIS 3927..................... . . . . .21

Entler v. Gregoire, •872 F.3d 1031,. 1040,

2017 U.S.- App. LEXIS 19657 . . . . ........ .......... 19

Farmer v. Brennan, 511 U.S. 8259 114 S. Ct. 1970 (1984). . . . . . . 14

Rhodes v. Robinson, 408 F.3d 559, 567-68,

2005 U.S. App. LEXIS 7052. ....... . . . . . . . . . . . . . . 20

Thornburgh v. Abbott., 490 U.S. 401, 416-17, 109 S. Ct. 1874 (1989). . 16

Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987)........ . 16

..

STATUTES AND RULES

28 U.S.C. §1291. . . . . . . . . . . .

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Fed. R. App. Proc. 4(d). .

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*

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13

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. .• .

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41 13

Rev. Code-of Washington (RCW) 9A.44.128(10). . . . . . . . . . . 5, 6, 21

OTHER

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. (X)NST. AND. I

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or

the press; or the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

U.S. aNsT. AMEND. VIII

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

•

U.S. (X)NST. AMEND. XIV

Section 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. 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.

28 U.S.C. §1291

The courts of appeals (other than the United States Court of Appeals for

the Federal Circuit) shall have jurisdiction of appeals • from all final

decisions of the district courts of the United States, the United States

District Court for the District of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, except there a direct review may

be had in the Supreme Court. The jurisdiction of the United States Court of

Appeals for the Federal Circuit shall be limited to the jurisdiction described

in sections 1292 (c) and (d) and 1295 of this title.

WRIT OF CERTIORARI -iii

01

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix B-C to

the petition and is

[1 reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

Ellis unpublished.

[X) Unknown

The opinion of the United States district court appears at Appendix

the petition and is

A

[II reported at

; or,

II] has been designated for publication but is not yet reported; or,

II] is unpublished.

LX] Unknown

[ I For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[1 reported at

; or,

[1 has been designated for publication but is not yet reported; or,

Ellis unpublished.

The opinion of the

appears at Appendix

court

-

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[1 is unpublished.

1.

WRIT OF CERTIORARI -1

to

I

t

JURISDICTION

(] For cases from federal courts:

Th d a

e:

ovh

may

he(

St

Court of Appeals decided my case

[ ] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: May 30, 2018

order denying rehearing appears at Appendix C

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No. _A______

(date) on ____________________ (date)

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[11 A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

Application No.

(date) on

________________

(date) in

A_______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

WRIT OF (ZTIORARI -2

STATEMENT OF THE CASE

INTRODUCFION

This cause comes before this Court after the Ninth Circuit Court of

Appeals held the court did not have jurisdiction to review the district

court's erroneous decision granting Defendants' dispositive notion for sulinary

judgment pursuant to three claims pertaining: (1) Eighth Amendment "failure to

protect;" (2) First Amendment "right to receive 'new' and 'used'

publications;" and (3) First Amendment "right to be free from retaliative

actions."

Facts Relevant to Issue A

111 Upon the United States District Court, Eastern District of Washington's

decision in granting Defendants' motion for summary judgment, on January

18, 2018, Plaintiff, William Womack [hereinafter "Mr. Womack"], timely

sent a notice of appeal to the Ninth Circuit Court of Appeals.

[hereinafter "COA"]. See Attachment B, [hereinafter "Att."], Att. 11 pp.

1-2.

12 On January 18, 2018, Mr. Womack also sent the district court a "letter"

which was electronically sent, as this was mandatory, asking for a docket

list and what oral hearings were available for appeal. Electronically

Filed Document [hereinafter "ECF"] No. 122.

113 The district court clerk erroneously designated this letter as a "Notice

of Appeal." See Cover page of ECF No. 122.

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I,

114 The Notice of Appeal was supposed to be sent to the district court. Fed.

R. App. Proc. 3-4.

15 Fed R. App. Proc. 4(d) states:

If a notice of appeal in either a civil or criminal case is mistakenly

filed in the Court of Appeals, the clerk of that court MUST note on the

notice the date when it was received and send it to the district clerk.

The notice is then considered filed in the district court on the date so

noted."

116 The COA issued a Time Schedule Order on January 23, 2018, stating

Appellant's opening brief was due on April 30, 2018. EF No. 125.

117 On March 2, 2018, the COA filed an order dismissing this cause alleging

the Court did not have jurisdiction because "the order challenged in the

appeal [wa]s not final or appealable." ECF No. 128.

118 As this decision was clearly erroneous, Mr. Womack timely filed a Petition

for Panel Rehearing addressing the erroneous decision of dismissing the

appeal due to lack of jurisdiction and attached a copy of the Notice of

Appeal and the erroneous order. See Att. B.

119 On April 10 and June 4, 2018, Mr. Womack sent the COA letters attempting

to put them on notice that a clear miscarriage of justice was transpiring.

110 On May. 30, 2018, the COA erroneously denied Appellant's Motion for Panel

Rehearing holding:

The motion for reconsideration (Docket Entry No 8) is denied. See 9th

Cir. R. 27-10. This denial is WITHOUT PREJUDICE to the filing of a

timely notice of appeal from a FINAL ORDER or judgment disposing of

wrr OF CERTIORARI -4

AA

remaining defendants named in appellant's Third Amended Complaint. NO

F1JRIHFP. FILINGS WILL BE ENTERTAIM IN THIS CLOSED CASE.

ECF No. 129; Att. C (emphasis added).

liii The district court did not rule upon either the proposed third or fourth

amended complaint. See ECF Nos. 94, 102.

1112 The COA issued a Mandate on June 7, 2018.

1113 Pursuant to Rule 13.1 and .3, this petition has been filed within ninety

(90) days of the last decision held on May 30, 2018, and therefore is

timely filed.

Relevant Facts Pertaining Issue B

(i) Eighth Amendment "Failure to Protect"

1114 In 2012, Mr. Womack was sentenced to a prison term and placed in the

Washington State Penitentiary [hereinafter "WSP"] in the general

population. ECF No. 58 at 111; ECF No. 81 at 11.

1115 The WSP has an extensive history of prison residents getting assault and

violently battered once it became known by other prison residents that the

former

prison resident had prior convictions defined by RcW

§9A.44.128(10). ECF No. 81 at 114, and ¶1116-9; ECF No. 75 at 111133-35; ECF

No. 80 at 118; ECF No. 79 at 116; ECF No. 76 at 11115-7; ECF No. 78 at ¶1113-5;

and ECF No. 77 at 111112_7.

1116 Prior to January of 2013, Mr. Womack's former celimate requested to move

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out of Mr. Womack's cell because he felt he was in danger because

Mr. Womack had previous convictions defined by RCW 9A.44-128(10). ECF No.

81 at 118.

1111 In January of 2013, Mr. Womack's former celimate wrote Mr. Womack a note

alleging that Mr. Womack was in danger because several other prisoners

were finding out that Mr. Womack was formerly charged with crimes defined

by RW 9A.44.128(10). ECF No. 81 at 119; ECF No. 75 at 1163, Ex. A, p. 52.

1118 This note led to. a short meeting with Defendant Landon Adams to address

Mr. Womack's safety concerns. ECF No. 81, 1119-11; ECF No. 75 at 111112-16.

1119 Even though Defendant Adams was put on notice of a threat of Mr. Womack's

safety, he did absolutely nothing in response to this threat. ECF No. 81

at 11110-11.

1120 Instead, Defendant Adams elected to house a known violent offender whom

had previously assault and battered other prison residents just a few

doors down from where Mr. Womack was housed. ECF No. 75 at 1972; ECF No.

48, Ex. A, pp. 23-24 (Interrogatory No. 2 [improperly answered)).

121 Approximately one week later in February of 2013, Mr. Womack fell victim

to a violent assault and battery by the known violent offender. ECF No. 81

at 1112, Ex. A, pp. 54-55, 60, and 62.

1122 The district court failed to view the facts in the light most favorable to

the nonmoving party, the Plaintiff, which resulted in an erroneous

decision granting summary judgment. ECF No. 121, pp. 3-41 7-10 (It should

be noted that the district court cited to Defendant Adams' Declaration in

WRIT OF CERTIORARI -6

ninety percent of the Court's opinion relating the failure to protect

claim.); ECF Nos. 57, 74, 819 101, 118-119, and 121.

(ii) First Amendment "Right to Receive "New" and "Used" Publications

1123 On February 27, 2014, Defendants rejected two books named "Moral Courage"

and "Situation Ethics" which were addressed to Mr. Womack from "Bound

Together Books: Attn: Prison Literature Project, 1369 haight St., San

Francisco, CA 94117." ECF No. 81 at 127 124 At the relevant time, the WSP had a "blanket ban" on all used books and

this was the reason given for rejecting the books listed above. ECF No. 81

at 11128-31.

1125 Mr. Womack exhausted his administrative remedies and filed suit. Id.

1126 In 2016, one week after Defendant Zaragoza waived service of this suit,

out of retaliation for filing suit against him, he rejected a "new" book

called "Great Book of Tattoo Designs," by Lori Irish. ECF No. 81 at 1135;

ECF No. 38 (Process Receipt and Return showing returned signed waiver of

Mr. Zaragoza on April 22, 2016); ECF No. 81, Ex. A, p. 20 (Book rejected

on April 28, 2016, just six days later.).

1127 Through the appeal process, a new proposed defendant, Israel "Roy"

Gonzalez claimed that the book was on a state-wide banned book list and

further alleged that the book had "how-to" instructions on tattooing and

that the book "promoted" tattooing. ECF No. 81 at 11138-44.

1128 Defendants absolutely refused to allow Mr. Womack to inspect this book

WRIT OF CERTIARI -7

because Mr. Womack alleged that Mr. Gonzalez presented perjured testimony

to the court by claiming that the book had "how-to" instructions on

tattooing and

promoted tattooing. Other than the title, the book only

had patterns resembling a large children's coloring book. These patterns

could be used for drawing, painting or other approved art activities which

Mr. Gonzalez was absolutely aware of. ECF No. 81 at 111136-44.

1129 Discovery led to show that the rejection made absolutely no sense because:

(1) the prison library offered tattoo magazines with "how-to"

instructions; and (2) several other "tattoo".books were allowed in the

prison which had "how-to pictorial instructions" and even nudity. ECF No.

81 at 111138-40.

1130 Mr. Womack clearly addressed each of the four Turner factors showing that

the "blanket ban" on used books was arbitrary and further showed that the

rejection of the new book was an exaggerated response to security concerns

which further supported Mr. Womack's retaliative theory. ECF No. 74 at pp.

11-14.

1131 The WSP Operational Memorandum (ON) allowed for used books from "non

profit" approved vendors, however, the Superintendent simply did not

approve any non profit vendors to supply prisoners with used books. ECF

No. 81, at 1130.

1132 Pertaining the First Turner factor, Defendants could provide no evidence

linking the asserted boilerplate rational of "safety and security" to the

regulation of the blanket ban on "used" books, however, Plaintiff provided

WRIT OF CERTIORARI -8

evidence in contrary to show that the rejection of used books and the one

new book was an exaggerated response to penological interests by providing

evidence of: (a) answered Interrogatories showing that Defendants could

not identify any penological interest pursuant to rejecting "used" books

nor could they identify any type of criminal activity where "used" books

have been used; (b) a response from a Public Disclosure Request requesting

"any document that proves Roy Gonzalez's statement that offender property

that is purchased outside of the department's control is subject to being

a main point of access to contraband which the department responded by

sending Mr. Womack nine pages consisting of DOC Policy 440.000 and nothing

else; and (c) evidence showing that several other prison residents

received books that contained the same content as the new rejected book

and and even more objectionable material. ECF No. 48, Ex. A, p. 33

(Answer to Interogatory Nos. 28-29; ECF No. 75 at 1163; ECF No. 81, Ex. A,

pp. 1-12; ECF No. 92, pp. 15-19 (identifying ten other similar books).

1133 Pertaining to the Second Turner Factor, at the relevant time, the prison

took anywhere from sixty-five to ninety-five percent of any money

Mr. Womack received so buying a "new" book was not a readily alternative.

ECF No. 81 at 1148.

1134 The Department of Corrections [hereinafter "DOC"] had a contract with JPAY

which offered to sell electronic books in their contrac.tin2014, however,

DOC has failed to pursue this avenue for unknown reasons closing the door

on this readily alternative avenue. ECF No. 75 at 1170.

WRIT OF CERTIORARI -9

135 Defendants could not identify any impact on the guards concerning "safety

and security" which weighed in Plaintiff's favor on the Third Turner

factor related to the bearing on the guards, other inmates, and the

allocation of prison resources. 9CF No. 48, Ex. A, p. 33 (Answer to

Interrogatory No. 30).

136 Pertaining the Fourth Turner factor, the facts, although disputed, clearly

show , that Defendants' rule not allowing "used" books coming from an

approved vendor and the rejection of the one new book was an exaggerated

response to penological interests. ECF No. 101 at 1153; ECF .No.. 74 at pp.

10-19; ECF No. 100 at pp. 4-6.

(iii) First Amendment Right to be Free from Retaliation

137 Prior to the rejection of the third "new" book, Mr. Womack provided

evidence showing: (a) Defendant Zaragoza was a Defendant in a state cause

of action where Mr. Womack was the Plaintiff; (ECF No. 81 at ¶133); (b) in

this State cause, Mr. Zaragoza went as far as commiting a federal crime

violating Title 18, ch. 18 §10011 1018, and 1703; (ECF No. 81 at 1145).

1138 There was a casual nexus between the rejection of the new book and the

filing of two lawsuits against Defendant Zaragoza. ECF No. 81 at 91135, and

45.

1139 The Secretary of DOC turned a "blind eye" to the retaliative actions when

he failed to respond to a letter that put him on notice of the illegal

conduct on May 16, 20169 by stating:

I would like to bring this matter to your attention that I feel that this

I) S)4 (e)T1

11]

book was rejected for retaliative motives [because]: (a) [t]here is no

difference (besides the title) of this book and any other art book (or

coloring book) which has patterns in it; (b) [jiust because the book has

the words "Tattoo designs" does not mean that is MY intentions for it [as]

I bought it for drawing designs to be used with my art curio; (c)

[because] there is no difference from this book to any other art book

(this book could pass as a children's coloring book), there would be no

penological interest in rejecting it and would further substantiate

retaliative motives [as] [t]here is no instructions in this book on how to

use the designs as tattoos, just outlined drawings; (d) I have no access

to a "banned book list" so I am forced to purchase books blindly just so

mine or my families money can be wasted by the book later being rejected;

and (e) I have no prior history of tattooing people in or out of prison.

ECF No. 81, Ex. A, p. 24.

1140 Taking the facts that have been established by the record as true,

Plaintiff established that there were disputed facts for a jury to

properly adjudicate.

Facts Relevant to Issue C

1141 Mr. Womack raised the following eight issues on appeal from the district

court pertaining to:

the district court failed to address Appellant's second motion to

compel prior to granting summary judgment;

Defendants' second discovery response was improper;

the erroneous granting of Defendants' summary judgment motion;

Defendants' first discovery response was improper and whether costs

were warranted for Plaintiff's Motion to compel being granted in

part;

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erroneous denial of appointing special. master and/or attorney;

district court failing to address fourth amended complaint;

district court failing to disclose findings pursuant to in camera

review of video of the related assault and battery prior to granting

summary judgment; and

Defendants' improperly not allowing Plaintiff to have access to

review the third rejected book to prove that Israel Gonzalez provided

the Court with perjured testimony PRIOR 10 the district court

granting Defendants' summary judgment motion.

See Att. B, Att. 1, pp. 1-2.

1142 Other than Claim 3, each claim directly affected the final decision in

granting Defendants' summary judgment motion.

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REASONS FOR GRANTING THE PETITION

1143 Each claim was brought forth pursuant to this Court's precedent,

therefore, pursuant to the doctrine of stare decisis, this Court should

grant this petition for a writ of certiorari.

REASON TO GRANT ISSUE A

1144 28 U.S.C. §1291 states: "The courts of appeals (other than the United

states Court of Appeals for the Federal Circuit) shall have jurisdiction

of appeals from all final decisions of the district courts of the United

States ...' It was not objectively reasonable for the Court of Appeals to

hold that they did not have jurisdiction to review the district court's,

decision in granting the Defendants' dispositive motion for summary

judgment. See Appx. B.

1145 Even though Mr. Womack mistakenly filed his Notice of Appeal in the Court

of Appeals, Fed. R. App. Proc 4(d) provides a safeguard in ensuring an

appeal still gets heard. Therefore, this Court should grant this petition

for a writ of certiorari.

REASON 10 GRANT ISSUE B

1146 This Court held in City & Cnty. of San Francisco v. Sheehan, 191 L. Ed. 2d

856, 135 S. Ct. 1765, 2015 U.S. LEXIS 3200, that cases arising in a

summary judgment posture, Ea reviewing court] views the facts in the light

most favorable to the non moving party and summary judgment will not lie

if ... the evidence is such that a reasonable jury could return a verdict

for the non moving party.

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•1

1147 This Court held in Farmer v Brennan, 511 U.S. 825, 114 S. Ct. 1970

(1984), that "(b)eing violently assaulted in prison is simply not the

'part of the penalty that criminal [prison residents] pay for their

offenses against society.' " ECF No. 74, p. 3. To prove a violation of a

prison official's constitutional duty to protect prison residents from

violence at the hands of other prison residents, a plaintiff must

establish: (1) he is incarcerated under conditions posing a substantial

risk of serious harm; and (2) the defendants were deliberately indifferent

to his need for protection. Id. The evidence, held in the light most

favorable to the Plaintiff, the non moving party, clearly shows that both

of these elements were satisfied.

-

148 The COA correctly found that the first element was satisfied as the Court

held that "the court cannot say that no reasonable juror could conclude

[Mr.] Womack's housing posed a serious threat of harm." Appx. A, pp. 8-9.

249 The Court, relying only on Defendants' Facts, concluded that the Plaintiff

failed to establish that Defendant Adams acted with deliberate

indifference. Id., p. 9.

This conclusion fails for several reasons

including: (1) The very facts that the Court relied on to determine there

was a substantial risk consisting of several declarations of other prison

residents established that it was "coninonly known" that this risk was

present. (ECF No. 81, 14); (2) It was readily admitted that Mr. Womack

placed Defendant on "notice" that he was in danger just a week prior to

being assault and batterred. (ECF No. 81, at 119); and (3) the Plaintiff's

celimate came forward prior to the assault and battery and ask to be moved

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p

out of Mr. Womack's cell because he feared for his safety because of Mr.

Womack's criminal history. (ECF No. 81, 118). The established evidence is

clear that a reasonable jurist could rule in favor of Mr. Womack's Eighth

Amendment Claim.

1150 The district court's complete reliance on Defendants' facts and the

court's claim that there was "undisputed evidence" is completely without

merit.

The defendants actually refused to file a "Statement of

Uncontroverted Facts" because there were so many disputed facts. See ECF

No. 81 and 101 (Showing each disputed fact and objections to Defendants

Facts which the district court failed to address); ECF No. 119

(Plaintiff's "proposed" Statement of Uncontroverted Facts).

1151 The district court further found that Plaintiff's Fourteenth Amendment

"State created Danger" claim was moot claiming that Plaintiff's third

amended complaint (that was not ruled upon) omitted the claim. This was

not the case as there was no difference in the allegations pertaining to

the claims resulting from the assault and battery from the first through

the fourth amended complaints. See ECF No. 34, at p. 5; ECF No. 94, at p.

6; ECF No. 102, p. 6.. This claim also satisfied four elements required

consisting of: (1) Whether the harm ultimately caused was foreseeable?;

(2) Whether the State acted in willful disregard for the safety of the

Plaintiff?; (3) Whether some relationship existed between the State and

the Plaintiff?; and (4) Whether the State actors used their authority to

create an opportunity for harm that would not of otherwise existed? ECF

No. 74, at pp. 7-9. Furthermore, there were several adding factors that

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contributed to the overall claim of "Cruel and Unusual Punishment. ECF No.

74, pp. 9-10.'

1152 Taking the facts in favor of the Plaintiff as to be true, a reasonable

jury

could

conclude

that

Defendant

Adams

acted

with

deliberate

indifference and, therefore, this Court should grant Plaintiff Motion for

Certiorari and remand with instructions to proceed to trial after

discovery is settled.

1153 In Thornbburgh v. Abbott, 490 U.S. 401, 416-417, 109 S. Ct. 1874 (1989),

this Court held that:

[T]here must be an 'individualized' determination that a particular

publication violates the rules at the time it is censored. The prison

cannot simply establish an 'excluded list' of publications or ban broad

categories of material without regard of their actual contents.

1154 To determine if a regulation that is impinging on prison residents'

constitutional right is reasonably related to apenological interest, this

Court established four factors for courts to help make this determination.

Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 2261-62 (1987). These

four factors are:

Whether there is a "valid connection" between the regulation and a

legitimate and neutral governmental interest put forward to justify

it, which connection cannot be so remote as to render the regulation

arbitrary or irrational;

Whether there are alternative means of exercising the asserted

constitutional right that remain open to prison residents, which

alternatives, if they exist, will require a measure of judicial

deference to the corrections officials' expertise;

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4

Whether and the extent to which accommodation of the asserted right

will have the impact on prison staff or prison residents' liberty,

and on the allocation of limited prison resources, which impact, if

substantial, will require particular deference to correctional

officials;- and

Whether the regulation represents an "exaggerated response" to prison

concerns,, the existence of a ready alternative that fully

accommodates the prison residents' right at de minimus costs to a

valid penological interest being evidence of unreasonableness.

1153 The record clearly shows that Defendants have a "blanket ban" on ALL used

books from ANYBODY. ECF No. 81, at 1130.

1154 Taking the facts in the most favorable light of the Plaintiff, each Turner

factor weighed In Plaintiff's favor and therefore the district court's

decision in granting defendant's summary judgment motion was not

reasonable. ECF Nos. 74 and 100; Appx. A.

1155 The district court held that "limiting incoming books to those shipped

directly from the publisher substantially reduces the risk the books could

have been tampered with or altered.." Appx. A, p.12 at 15-17. This holding

is irrational because this was not a "publisher only" suit; the issue at

bar was pertaining to no used books being allowed by anybody. Similarly,

basing it determination on only the Defendant's evidence, the trial court

concluded that the rejection of the new book was properly rejected because

it had "information about tattoos in a "how-to" manner." Appx. A, p. 13 at

9-11. Plaintiff's Facts established that this very statement was perjured

testimony by proposed Defendant Israel Gonzalez. ECF No. 81 at ¶11136-44;

ECF No. 101 at 91151-52. Plaintiff's evidence showed that there was no

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legitimate penological interest furthered by rejecting the third new book.

ECF No. 101 at 11152-54.

1156 Basing it's determination on Defendants' evidence, the district court

determined that Plaintiff had a ready alternative of buying the books new.

Appx. A, p. 12 at 15-19. Plaintiff's facts showed that buying new books

was not a ready alternative because the prison took anywhere from sixtyfive to ninety five percent of any money Plaintiff received and therefore

the second Turner factor weighed in Plaintiff's favor. ECF No. 81 at 48.

1957 Relying only on Defendants' evidence, the district court concluded that

there was no ready alternative available in lieu of banning all used

books. Appx. A, p. 12-13 at 19-6. Plaintiff's evidence showed that there

was a ready alternative consisting of electronic books which was offered

through a company called JPAY whom had already signed a contract to

provide electronic books upon DOC's approval. ECF No. 81 at 70.

Plaintiff's evidence further established that Defendants could not

identify any penological interests that would be furthered nor could they

identify any type of criminal activity where used books have been used in

the prisons and evidence rebutting Mr. Qonzolez's testimony by providing a

Public Disclosure Request asking for "any document that proves Roy

Gonzalez's statement that offender property that is purchased outside the

department's control is the main point of access to contraband" where the

department only could provide a copy of DOC policy. See 1132 herein.

1158 Relying on Defendants' evidence, the Court found that the new book was

reasonably rejected because the same books could be checked out in the

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prison's library and by allowing prison residents "unfettered access to

publications instructing the reader on the mechanics of tattooing, it

[would be] possible for prison-tattoing to increase." ECF No. 121, p. 13

at 16-18. The problem with this finding is first, the Court must assume

that the Plaintiff is false in alleging that Israel. Gonzalez provided

perjured testimony regarding the book containing "how-to" instructions on

tattooing. ECF No. 101 at 111151-52.

Second, Mr. Womack specifically ask

the Court to inspect the book in an in camera review to establish that

Mr. Gonzalez did provide perjured testimony on this very subject. ECF No.

92 (Second Motion to Compel ThAT WAS NOT HEARD), Statement of Issue No. C,

pp. 3, and 15-19. Taking the Plaintiff's facts in the most favorable

light clearly shows that the Third and Fourth Turner factors weighed in

favor of Plaintiff and that these rejections were an eggagerated response

to penological interests.

1159 Due to an absolute complete misscariage of justice, this Court should

grant this petition for a writ of certiorari and remand this cause back to

the district court to proceed to trial after discovery is properly

settled.

1160 The Ninth Circuit has clearly established that to prevail on a First

Amendment retaliation claim, a plaintiff mush show that "(1) a state actor

took some adverse action against [him]; (2) because of (3) [his] protected

conduct, and that such action (4) chilled [his] exercise of his First

Amendment

ghts, and (5) the action did not reasonably advance a

legitimate correctional goal." Entler v. Gregoire, 872 F.3d 1031, 1040,

WRIT OF CERTIORARI -19

-

S

2017'U.S. App. LEXIS 19657 (citing Rhodes v. Robinson, 408 F.3d 559, 56768, 2005 U.S. App. LEXIS 7052.

1161 Taking the Facts in the most favorable light of Plaintiff, the facts show:

(1) Defendants Zaragoza and Gonzalez rejected or took part in rejecting

Mr. Womack's "news' book titled "Great Book of Tattoo Designs" (ECF

No. 81 at 91135-39);

(2-3) in retaliation for filing a State and federal law-suit and prison

grievances against them (ECF No. 81 at 11132-38, 43, and 45; ECF No.

101 at 11149-55);

As a direct result of Defendants' retaliative actions, Mr. Womack has

not ask his family or any other non profit organizations to send him

any books which he had a First Amendment right thereof; (ECF No. 75

at 1167); and

the action did not reasonably advance a legitimate correctional goal.

(ECF No. 81 at 1138; see also argument above).

1162 The Court further found' that even if Defendants did violate Mr. Womack's

constitutional rights, they were entitled to qualified immunity. Appx. A,

pp. 14-17.

9

1 63 This decision was flawed because each claim was brought under well

established precedent from this court or, in the case of retaliation, the

Ninth Circuit Court of Appeals. Therefore, this petition for a writ of

certiorari should be granted in the interest of justice and this cause

should be remanded with instructions to allow Mr. Womack's to proceed with

his Fourth amended complaint. ECF No. 102.

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REASON 10 GRANT ISSUE C

1164 This Court held in Cuozzo Speed Technology v. Lee, 195 L. Ed. 2d 423, 2016

U.S. LEXIS 3927: "[T]he general rule that an appeal from final judgment

permits review of all rulings that led up to the judgment[.]"

1165 Reviewing both Defendants' answers to discovery requests, any reasonable

jurist could only conclude that discovery was answered with boilerplate

evasive answers to cover up Defendants' unconstitutional actions which

provided undue prejudice on this cause which directly affected the final

summary judgment motion. See ECF No. 48 and ECF No. 92 (First and Second

Motion to Compel with attached discovery responses.).

1166 On August 4, 2016, Plaintiff filed a Motion for Special Masster and/or

Attorney asking for limited attorney services to review the video of the

assault and battery and to conduct interviews on WSP personnel to

establish the assertion that it was common that prison residents that had

prior conviction defined by RCW §9A.44.128(10) would eventually become

victims of assault and battery if placed in the main population of the

WSP. ECF No. 47. The Court ordered Defendants to provide the video to

conduct an in camera review which Defendants complied. ECF No. 83, pp. 58; ECF No. 86. The district Court then failed to provide Plaintiff with

any information about the in camera review prior to granting summary

judgment.

1167 As the inspection of the video of the assault is directly relevant, it was

not reasonable to conduct an in camera review of the assault and battery

WRIT OF CERTIORARI -21

and then not provide any information pursuant to that review nor was it

reasonable for the court to not either conduct 'an in camera review of the

third book or order Defendants to allow Plaintiff to inspect the book to

be able to respond to Defendants' summary judgment motion. As such, this

Court should grant this petition for writ of certiorari pertaining to

issue three and remand with instructions to address each and every issue

to ensure a proper appellate process in accordance with due process of the

law.

DNLUSION

Hundreds of prison residents have needlessly fell victim to violent

assault and battery every year at the WSP. Not only was Appellant one of

those victims, he was then further punished for being one of these victims by

being placed in a punishment setting in the same place as the person whom

conducted the assault and battery for forty-two days. Furthermore, prison

residents at the WSP are not able to purchase "used" books or eBooks at the

present time. By granting this petition, this Court will ensure that this

unconstitutional practice will stop.

Whereas Appellant respectively prays that this Court will grant this

motion for a writ of certiorari.

Dated this Twelve day of July, Two Thousand and Eighteen years after the

death of our Lord and personal savior.

S/

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William Womack #354117 RB-205

Paralegal and Pro Se

Washington State Penitentiary

1313 N. 13th Ave.

Walla Walla, WA 99362