Petition for Writ of Certiorari — Jesus Valle, Petitioner v. Rusty Rogers, et al.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

.1 e s. u s

a lie

PETITIONER

-

(Your Name)

vs.

Rusty Rogers et al

—RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Fifth Circuit Court of Appeals in New Orleans

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Jesus Valle

(Your Name)

Frth M. Fbbertson 12071 F.M. 3522 Pbilene Tx. 796131

(Address)

AIniIjen, ix. 776O1 '

(City, State, Zip Code)

(Phone Number)

-

QUESTION(S) PRESENTED

Whether the Fifth Circuit Court of Appeals decision denying

relief represents a split in the Circuit Courts. Valle, a pro se

litigant and prisoner in state prison filed a civil rights claim

after being assaulted by a fellow prisoner who was held in administrative segregation due to his history of 41 staff assaults and

18 "possession of a weapon" cases, Vet the court did not believe

his violent history represented a foreseeable threat sufficient

to constitute a "substantial risk of serious harm".

Whether the U.S.D.C.'s refusal to hear a claim under the

theory of a "State Created Danger" is a split in the Circuits that

this court will resolve.

ii

C'

TABLE OF CONTENTS

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

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................3

STATEMENT OF THE CASE ...........................................................................................4-6

REASONS FOR GRANTING THE WRIT ..........................................................................7-12

.

CONCLUSION................................................................................................................... .1 3

INDEX TO APPENDICES

APPENDIXA U.S. District Court decision

APPENDIX B Fifth Circuit Court of Appeal---

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

111

LIST OF PARTIES

[1 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:

Correctional Officers Rusty Rogers, Tommy Ramos, Denise IJpfold,

Lt. Johnson and

Who have been represented by the Texas

Attorney Generals Office of Law Enforcement Defense" at P.O. Box

12540 Austin Tx. 70711

Xavier Cutright who Valle sued under supplemental jurisdiction

20 U.S.C. §1367. And, is not represented by counsel.

iv

IL

A

TABLE OF AUTHORITIES CITED

CASES

Cornelius v. Town of Highland Lake BOO F.2d 348 (11th cir. 1909)

PAGE NUMBER

10

Eratt v. Gov't of V.I. 037 F.2d 968 (3rd Cir. 1988)..

7

Farmer v. Brennan 114 S.Ct. 1970 (1984)..

8

Johnson v. Dallas I.S.D. 30 F.3d 190 (5th Cir. 1994) .............B

K.H. ex rel Murphy v. Morgan 911+ F.2d 046 (7th Cir. 1990). ..........10

Longoria v. Texas 473 F.3d 586 (5th Cir. 2006)..

..'

..

..

..

..

..

10

..

Mbrgan v. District of Columbia 824 F.2d 1049 (D.C. Cir. 2987)..

7

Scanlan v. Texas A & M 343 F.3d 533 (5th Cir. 2003)..

10

Wood v. Ostrander 879 F.2d 583 (9th Cir. 1989)..

10

STATUTES AND RULES

2 U.S.C. §1983................................7

OTHER

V

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:

A

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[ ] reported at

; or,

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

[x] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

B

[ ] reported at

; or,

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

[X] is unpublished.

[ 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

[ ] reported at

; or,

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

[] is 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.

to

J.

JURISDICTION

[) For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was April 12th 2018

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

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

Appeals 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

(date) on ___________________ (date)

in Application No.

A______

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

[1 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. .A_______

(date) on

(date) in

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

2

C.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The U.S. Constitutional provision of the EighthAmendment's

prohibition of Cruel and Unusual Punishment.

STATEMENT OF THE CASE

This case was brought under 1+2 U.S.C. §1983 asserting a violation

of the Eighth Amendment under failure to protect as Valle suffered

physical injury and emotional injury he is asking for damages.

On 10-06-2013, aroud 0200 Valle was following his orders by

picking up dirty meal trays and necessity items (clothing), even

though this was techinically a duty assigned to officers. \Jalee

was doing this job as ordered. As Valle passed through the gate

and in the process of cleaning offender Xavie Curight, an offender

whose reputation was well known to staff and administration as he

had assaullèd correctiona l officers over 1+1 times and been caught

with a weapon over 18 times. Cutriight was considered by the TDC

ag ency to be an obvious and direct threat to officers and under

policy was to be housed in a situation where he never had access

to staff or other offenders. His cell was 1)red-tagged with a

warning to officers to avoid contact with Cutrght unless a fiveman team was available to subdue him. 2)double locked; the first

is a pressure lock on the meal tray slot referred to as the "bean

chute" (meal tray slot) second is a pad lock. 3) the normal airexchange vents which also allows easier communication in this case

was covered with plexi-glass bolted into place whiOh would prevent

even a slip of paper from being moved out of the cell. 4.) The

bottom of the cell is welded in place a steel air barrier which

prevents only the tinest sheet of paper from being moved out of

the cell. 5) The cell door i.tself is double locked with a centeri

lock and another exterior keyed padlock.

4.

A ccording to the rules of administrative segregation (adseq herein) opening the ben chute door to allow Cutright to

traffic and trade or even to be handed a meal tray was strictly

forbidden with out a plexiglass box covering the door panel and

door. This plexi-glass box - was the normal means by which an

inamte housed in ad-seg at Cutrightts level was handed a tray.

However, on this day Correctional Officer (C.O. herein)

Rogers had opened the door to allow Cutright to traffic and

trade items. On this date, Cutright asked Valle to move some

contraband items, he refused and Cutright lashed out and sliced

Valle's head from the forehead to the back of his head, requiring

16 stitches. It was revealed in the limited discovery that

Valle obtained that agency policy requires that C.O.s be between

these offenders (Cutright) and Valle or at least no further than

normal conversational levels would allow. But, it had become a

regular practice to let some of the hard to handle offenders have

the bean chute door open to traffid and trade small items if

they had recently been well behaved. Even though this was not

allowed by policy and their history dictated against it.

Moreso on previous occasions injuries had occurred to other

inmate janitors and even some officers through bean chute doors.

It is important to this case to realize that some C.O. most

likely Rogers removed the keyed padlock from the exterior door

of the bean chute. This was impossible for Cuti.

to get to

the padlock from inside the cell. As our limitad discovery indicated Rogers held the keys on that day, Valle named him as lead

defendant.

5

Valle maintains that this "practice" was allowed at risk to

inmate janitors and even fellow correctional officers and as such

constituted deliberate indifference to a known risk that they

failed to protect him from, in light of two policies that should

have protected him.

Valle was initially placed into the court of magistrate Judge

Frost who agreed that Valle had stated a claim see the Order

dated April 24th 2015 page 6 where Judge Frost stated "While

Plaintiff has stated sufficient allegations as to Rogers..."

qouting Coleman v. Sweetin 745 F.3d 756, 763_61+ (5th Cir. 2014).

Yet later nudge Cummings on page 14 of the "Order Granting Motion

for Summary judgment and Order of Dismissal" entered on or about

Sept. 14th 2016 held that "Valle has not and cannot, state facts

to show that Rogers was anticipating such an attack.. .Valle has

failed to state a claim of violation of a constitutional right."

The honorable Fifth Circuit upheld this decision implying in it's

order that Valle was required to prove under the failure to protect

claim that Rogers knew an attack on Valle was anticipated.

REASONS FOR GRANTING THE PETITION

Valle argues tht the Hon. Fifth Circuit Court of Appeals

decision is in conflict with the other Courts of Appeals decisions

on the issue of failure to protect. This Court of Appeals for the

Fifth Circuit has taken an approach which does not allow for the

Plaintiff to present the argument that the defendant èhould have

known of the potential of injury. Rather, this standard of review

requires that Plaintiff prove that the defendant was "anticipating"

an attack upon an individual.

Each year dozens of individuals are assaulted in state and

federal prisons despite the efforts made by the Prison Rape Elimination Act (P.R.E.A. herein) and other efforts by the U.S. Congress

to eliminate violence from the prison systems. Clearly the level

of violence in general has been considered on several fronts to

be of national signifigance. By the utilization of this standard

of review it has signaled a "heightened" level of proof for Plaintiffs.

In the case of Morqan v. Dist±ict of Columbia 621+ F.2d '101+9

(D.C. Cir. 1967) we find "Record supported finding that, as matter

of practice, District of Columbia was "deliberately indifferent"

to inmates' security and that this practice caused inmate to suffer

injury from assault at hnds of fellow inmate; there was substantial evidence that inmate had been planning to kill another inmate

unrelated to instant litigation..."

In Erett v. Government of Virgin Islands 839 F.2d 968 (3i7d

Cir. 1966) "Evidence supported conclusion that corrections officer

with full knowledge of risk that first inmate, who had assaulted

7

or

4

ous,

second inmate with rock, would return with weapon and attempt

that

to inflict further harm on second inmate, deliberately chose to

occu

avoid confronting first inmate; therefore, second inmate was

eren

entitled to damages under §1983 from officer, who was sued in

his individual capacity, for injuries sustained when first inmate

havi

returned and stabbed second inmate."

the

Even Supreme Court precedent is clear on this issue, "if

ad s

the risk is obvious" then defendants may be liable, see Farmer v.

dang

Brennan 114 S.Ct. 1970 (1994); here Valle argues simply that if an

part

inmate is willing to assault correctional officers 41 times, the

This

risk should be obvious that he was willing to assault a fellow

Vail'

inmate with little or no provocation.

his

In contrast the Fifth Circuit held that Valle had merely

of

argued that the Defendantè were liable because of 'where' Cutright

8ec8

was housed! Valle in reply would point out that any correctional

b)T

officer would tell you that people on death row are obviously more

level

dangerous than those in general population.

to J

his

Valle also points out there is a second circuit split in

this C855.

c)

Valle argues that the Fifth Circuit has made a deliberate

Pd]

effort to not apply the "State Created Danger" theory of liability

off

to criminal justice affiars in general and prison litigation spec-

evei

ifically. While it is well defined in the •case law of the Fifth

acc

Circuit, In Johnson v. Dallas Independent School Dist., 38 F.3d 198

coJ

(5th Cir. 1994) head- note 1 states "In order for §1983 liability to

be imposed on a state created danger theory, environment created

exti

by state actors must he dan ge rous and they must know it is danger-

to

F;'

5) Defendant's Myers, Ramos and Rogers were aware of the danger

and chose to ignore the risk to themseles and Valle in order to

gain short term cooperation of Cutright.

Valle argues tht the Fifth Circuit has choen to not apply

the ideas of a State Created Danger while •other circuits have

applied it to the criminal justice context.-:: - Other. Circuits have

readily applied the theory of liability to the criminal justice

context consider; Wood v. Ostrander 8791F.2d 583 (9th Cir. 1989)

where a police officer arrested a drunken driver andimpounded

his car leaving female passenger alone- at night, without any means

to go home, in a neighborhood known for criminal activity. She

was raped by a stranger who offered her a lift. In Cornelius v.

Town of Highland Lake 880 F.2d 31+8 (11th -, Cir. 1989) the state

permitted a prisoner with a violent criminal history to participate

in work release program at a municiple town hall under supervision

of anituntrained city employee. He gained access to a knife, abducted the Plaintiff who worked for the city, and held her hostage for

three days. See also K.H. ex rel Murphy v. Morgan 911+ F.2d 846

(7th Cir. 1990).

In Longoria v. Texas 14.73 E.3d 586 (5th Cir. 2006) the court

noted "Since Scanlan we have explicitly rejected this theory of

liability." See Scanlan v. Texas A & M Univ. 343 F.3d 533 (5th

Cir. 2003) the court held that the "bonfire" was a state created

danger.

Valle argues that this question of a theory of liability

is the sort of qustion that the Supreme Court should hear as it

is a question that directly applies to the numerous shootings

10

CONCLUSION

The petition for a writ of certiorari should be granted.

I,-

12