Petition for Writ of Certiorari — John Patrick Fletcher, Petitioner v. Celia Schwartz, et al.

Supreme Court briefOct 24, 2018

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Supreme Court, U.S.

FIL

OCT 242018

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

JOHN PATRICK FLETCHER,

Petitioner

CELIA A. SCHWARTZ, ET AL,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Tenth Circuit

PRO SE PETITION FOR WRIT OF CERTIORARI

John Patrick Fletcher

Proceeding Pro Se under 28 U.S.C. § 1654

John P. Fletcher #81478

B.V.C.F. East 1-S-12

P.O. Box 2017

Buena Vista, Colorado 81211

QUESTIONS PRESENTED FOR REVIEW'

Whether the Seventh Amendment allows an action to be dismissed under

28 U.S.C. § 1915— without a finding of factual error

six months after the issuance

of an "Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915" for the same

actions.

Whether a pro se prisoner complaint, which pled facts demonstrating each prong of

18 U.S. C. § 242, can fail to state a claim upon which relief may be granted under

42 U.S.C. § 1983.

Whether dismissals under 28 U.S.C. § 1915(e) are reviewed de novo or for abuse of

discretion.

INCLUDED QUESTIONS:

• Whether it is "reasonably related to legitimate penological interests"

standard under Turner v. Safley, 482 U.S. 78, 89 (1987), for a prison official

to insist to the reporting victim, that a fellow prison official's conduct was not

a crime.

•

Whether the constitution and the laws of the united States are the supreme

law within prison walls.

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II.

LIST OF ALL PARTIES

Petitioner, Pro Se

John P. Fletcher #81478

B.V.C.F. East 1-S-12

P.O. Box 2017

Buena Vista, Colorado 81211

Respondents

Celia A. Schwartz,

Dent

First Name Unknown,

Hansen

First Name Unknown,

Edwin Herndon,

Jason Lisac,

David Lengerich, and

Rick Raemisch

Counsel for All Respondents

Colorado Attorney General's Office

1300 Broadway, 10th Floor

Denver, Colorado 80203

Corporate Disclosure Statement

John Patrick Fletcher is not a publically-held corporation or other publicly-held

entity.

ii of v

III. TABLE OF CONTENTS

Page No.

Questions Presented for Review ........................................................................i

II.

List of All Parties ..............................................................................................ii

III.

Table of Contents .............................................................................................iii

IV.

Table of Cited Authorities .................................................................................v

Citations of the Official and Unofficial Reports ...............................................1

VI.

Basis for Jurisdiction .........................................................................................1

VII. Constitutional Provisions, Treaties, Statutes, Ordinances,

and Regulations Involved ..................................................................................2

VIII. Statement of the Case .......................................................................................3

IX.

Argument Amplifying the Reasons Relied on

for Allowance of the Writ ...................................................................................6

Primary Questions ..................................................................................6

Conflict with Federal Constitution ..............................................6

Conflict with Federal Statute ......................................................7

Conflict with Standard of Review ..............................................10

Included Questions ...............................................................................11

Conflict with Fiduciary Ethics ...................................................11

Conflict with Federal Constitution ............................................13

Importance of the Questions Presented ...............................................14

Conclusion ........................................................................................................17

iii of v

APPENDIX TO PRO SE PETITION FOR WRIT OF CERTIORARI

Opinions, Orders, Findings of Fact. and Conclusions of Law

Appendix A. Order of Dismissal (District Court) ............................................(1 to 12)

Appendix B. Order and Judgment (Tenth Circuit) .........................................(1 to 11)

Order on Rehearing

Appendix C. Order (Denying Petition for Panel Rehearing

Tenth Circuit)

(1 to 1)

Required Materials

Appendix D. Article VT, Clause 2, of the United States Constitution ..............(1 to 1)

Appendix E. First Amendment to the United States Constitution ..................(1 to 1)

Appendix F. Seventh Amendment to the United States Constitution .............(1 to 1)

Appendix G. 18 U.S.C. § 242, Deprivation of rights under color of law ...........(1 to 1)

Appendix H. 18 U.S.C. § 1512.

Tampering with a witness, victim, or an informant .....................(1 to 4)

Appendix I. 28 U.S.C. § 1915, Proceedings in forma pauperis .........................(1 to 3)

Appendix J. 42 U.S.C. § 1983, Civil action for deprivation of rights ...............(1 to 1)

Material Essential to Understanding the Petition

Appendix K. Second Amended Prisoner Complaint and Affidavit .................(1 to 26)

Appendix L. Order Granting Leave to Proceed

Pursuant to 28 U.S.C. § 1915 (District Court) .............................(1 to 3)

Appendix M. Order (granting leave to proceed

without prepayment of filing fees) (Tenth Circuit) .....................(1 to 2)

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IV.

TABLE OF CITED AUTHORITIES

Page No.

Cases

Brown v. Plata,

563 U.S. 493 (2011) ...............................................................................................11

Gee v. Pacheco,

627 F.3d 1178 (10th Cir. 2010) .............................................................................13

Turner u. Safley,

482 U.S. 78 (1987) ............................................................................i, 5, 8, 9, 11, 12

Constitutional Provisions

Article VI, Clause 2, of the United States Constitution ...............................11, 14, 17

First Amendment to the United States Constitution .................................7, 8, 10, 11

Seventh Amendment to the United States Constitution ............................................6

Statutes

18 U.S.C. § 242, Deprivation of rights under color of law .........................i, 3, 6, 7, 10

18 U.S.C. § 1512, Tampering with a witness, victim, or an informant ......................9

28 U.S.C. § 1915, Proceedings in forma pauperis .............................................3, 8, 12

42 U.S.C. § 1983, Civil action for deprivation of rights ................................4, 6, 7, 14

Rules

Federal Rules of Civil Procedure Rule 8 .....................................................................5

SupremeCourt Rule 16.1 ...........................................................................................15

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CITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS

Order and Judgment of the United States Court of Appeals for the Tenth Circuit is

not reported; a copy is attached as Appendix B to this petition.

Order denying rehearing of the United States Court of Appeals for the Tenth

Circuit is not reported; a copy is attached as Appendix C to this petition.

10.

The Order of Dismissal of the United States District Court for the District of

Colorado is not reported; a copy is attached as Appendix A to this petition.

VI.

11.

BASIS FOR JURISDICTION

Judgment of Order Sought To Be Reviewed

The judgment of the United States Court of Appeals for the Tenth Circuit was

entered on August 02, 2018, (Appendix B).

12.

Order Respecting Rehearing

An order denying a petition for rehearing was entered on September 12, 2018,

(Appendix Q.

13.

Statutory Provisions Believed to Confer Jurisdiction

Jurisdiction is believed to be conferred under 28 U.S.C. § 1254.1.

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WI. CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES,

ORDINANCES, AND REGULATIONS INVOLVED

Constitutional Provisions

Article VT, Clause 2, of the United States Constitution

First Amendment to the United States Constitution

Seventh Amendment to the United States Constitution

Statutes

18 U.S.C. § 242, Deprivation of rights under color of law

18 U.S.C. § 1512, Tampering with a witness, victim, or an informant

28 U.S.C. § 1915, Proceedings in forma pauperis

42 U.S.C. § 1983, Civil action for deprivation of rights

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WIT. STATEMENT OF THE CASE

Facts Material to Consideration of the Questions Presented

14.

Question Presented

This case was denied on "initial screening" under 28 U.S.C. § 1915 for failure to

state a claim upon which relief may be granted.

ii.

Initiating Facts

This case began when the plaintiff was given a direct order by a prison official to

stop engaging in the constitutionally protected right to Freedom of Speech.

Believing the order to be an unconstitutional abuse of power and in violation of

18 U.S.C. § 242, Deprivation of rights under color of law, the plaintiff sought to

As prison officials strictly control the plaintiffs ability to communicate with the

"outside", the plaintiff sought assistance from the other named prison official

defendants with registering the above criminal complaint with federal law

enforcement.

After the plaintiff personally informed the other defendants upon the facts and law

of the initiating unlawful direct order, each defendant refused to notify federal law

enforcement of the reported criminal act, and four of the six defendants refused to

allow the plaintiff to register the complaint with federal law enforcement himself.

With those four defendants asserting that no crime had occurred, so there was

nothing for the plaintiff to report to federal law enforcement.

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20.

Resulting in the plaintiff filing suit under 42 U.S.C. § 1983, for the initiating

deprivation of constitutionally protected conduct, the deprivation of the right to

Petition the Government (federal law enforcement) for a Redress of Grievances

(registering a criminal complaint), cruel and Unusual Punishment Inflicted for the

criminal victimization by prison officials, and other related constitutional violations.

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iii.

Proceedings Below

The reviewing magistrate recommended denying the complaint because

"[plaintiff] fails to provide a short and plain statement of his claims in compliance

with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure",

(Appendix A, p.2, ¶ bottom).

Believing the magistrate's assessment was in error, the plaintiff stood by his

complaint; which the district judge then summarily dismissed as being

"legally frivolous", (Appendix A, p. 12, ¶ 2).

Baffled, by the district court's ruling, the plaintiff appealed the decision.

On appeal, the Tenth Circuit overruled the district court, finding the complaint was

not frivolous, (Appendix B, p. 5, ¶ top).

Instead, denying the pro se complaint on "initial screening" because "[i]n sum, he

failed to plead that [defendant] conduct was not 'reasonably related to legitimate

penological interests.' Turner u. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed.

2d 64 (1987).", (Appendix B, p. 8, ¶ top).

This petition results.

Basis for Federal jurisdiction in the Court of First Instance

The district court had jurisdiction under 28 U.S.C. § 1331, Federal question.

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lix. ARGUMENT AMPLIFYING THE REASONS RELIED ON

FOR ALLOWANCE OF THE WRIT

Primary Questions

Conflict with Federal Constitution

28.

Question Presented

Whether the Seventh Amendment allows an action to be dismissed under

28 U.S.C. § 1915— without a finding of factual error

six months after the issuance

of an "Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915" for the same

actions.

Standard of Review

According to Seventh Amendment to the United States Constitution:

In Suits at common law, where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved, and no fact tried by a

jury, shall be otherwise re-examined in any Court of the United States, than

according to the rules of the common law.

Relevant Facts

On 06/29/2017, the district court authorized the plaintiff to proceed in forma

pauperis under 28 U.S.C. § 1915, (Appendix L).

On 12/19/2017, the district court judge

citing heavily from the reviewing district

magistrate's recommendation, without asserting any dissent to the magistrate's

findings

dismissed this action under 28 U.S.C. § 1915, (Appendix A, p. 12, ¶ 2).

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ii.

Conflict with Federal Statute

32.

Question Presented

Whether a pro se prisoner complaint, which pled facts demonstrating each prong of

18 U.S.C. § 242, can fail to state a claim upon which relief may be granted under

42 U.S.C. § 1983.

Standard of Review

According to 42 U.S.C. § 1983, Civil action for deprivation of rights:

Every person who, under color of any statute, ordinance, regulation, custom,

subjects, or causes to be subjected, any citizen of

or usage, of any State

the United States

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress[.]

According to 18 U.S.C. § 242, Deprivation of rights under color of law:

Whoever, under color of any law, statute, ordinance, regulation, or custom.

to the deprivation of any rights,

willfully subjects any person in any State

privileges, or immunities secured or protected by the Constitution

shall be

fined under this title or imprisoned not more than one year, or both[.]

Relevant Facts

According to the appellate court, the plaintiff plead, (Appendix B, pp. 2-3, '9 g & k):

On or about May 09, 2017, at approximately 09:50 a.m., in the prison

law library.

Having been informed upon the premises of the unlawful nature of

her actions Defendant Schwartz repeated her unlawful order for

Mr. Fletcher to stop engaging in the protected right to Freedom of

Speech.

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Prong-by-Prong Demonstration

36.

42 U.S.C. § 1983

18 U.S.C. § 242

Facts Pled

Every person who

Whoever

Defendant Schwartz

under color of any

statute, ordinance,

regulation, custom, or

usage

under color of any law,

statute, ordinance,

regulation, or custom

State prison officials

willfully

Having been informed

upon the premises of the

unlawful nature of her

actions Defendant

Schwartz repeated her

order for

Mr. Fletcher to stop

engaging in the

protected right to

Freedom of Speech.

[Not A Prong]

of any State

in any State

Colorado

subjects, or causes to be

subjected

subjects

Defendant Schwartz

order

repeated her

any citizen of the United

States

any person

Mr. Fletcher, born in

Biloxi, Mississippi

to the deprivation of any

rights, privileges, or

immunities

to the deprivation of any

rights, privileges, or

immunities

Defendant Schwartz

order

repeated her

for Mr. Fletcher to stop

engaging in the

protected right to

Freedom of Speech

secured by the

Constitution and laws

secured or protected by

the Constitution

First Amendment of the

Constitution

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Tenth Circuit's Opinion

According to the appellate court, (Appendix B, p. 5, ¶ top):

[T]he facts he alleged do not set forth violations of the constitutional rights

that he asserted. As such, his federal claims are subject to dismissal under

[28 U.S.C.] § 1915(e)(2)(B)(ii) for failure to state claims on which relief can be

granted[.]

According to the appellate court, (Appendix B, p. 7, ¶ middle):

These allegations fail to state a plausible First Amendment claim against

Ms. Schwartz.

According to the appellate court, (Appendix B, p. 8, ¶ top):

In sum, he failed to plead that Ms. Schwartz's conduct was not "reasonably

related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89,

107 S. ct. 2254, 96 L. Ed. 2d 64 (1987).

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iii. Conflict with Standard of Review

40.

Question Presented

Whether dismissals under 28 U.S.C. § 1915(e) are reviewed de novo or for abuse of

discretion.

Standard of Review

According to Cruz v. Gomez, 202 F.3d 593, 596 (2nd Cir. 2000):

Dismissals under § 1915(d) were once within the discretion of the district

court and thus reviewed for abuse of that discretion. See, e.g., Denton v.

Hernandez, 504 U.S. 25, 33, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992).

However, in 1996 Congress enacted the Prison Litigation Reform Act, Title

VIII of the Omnibus Consolidated Rescissions and Appropriations Act, Pub.

L. No. 104-134, 110 Stat. 1321 (1996), which redesignated § 1915(d) as

§ 1915(e) and provided that dismissal for failure to state a claim is

mandatory. See Livingston v. Adirondack Beverage Co., 141 F.3d 434, 436-37

(2d Cir. 1998). This Court has not decided what standard of review applies to

such dismissals: the § 1915(d) abuse of discretion standard, or the de novo

standard applicable under Rule 12(b)(6). See Polanco v. U.S. Drug

Enforcement Admin., 158 F.3d 647, 650 (2d Cir. 1998).

The standard of review used in this case, (Appendix B, p. 4, ¶ middle):

"We generally review a district court's dismissal for frivolousness under

§ 1915 for abuse of discretion. However, where the frivolousness

determination turns on an issue of law, we review the determination

de novo." Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir 2006) (citation

omitted).

Relevant Facts

By the appellate court using the de novo standard of review instead of the abuse of

discretion standard, the appellate court affectively changed the very nature of the

appeal; namely, from one seeking a review for abuse of discretion, to one being

reviewed on the merits.

A review not sought, and argued here,-Fe authorized by neither statute nor

precedent of this Court.

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Included Questions

Conflict with Fiduciary Ethics

45.

Question Presented

Whether it is "reasonably related to legitimate penological interests" standard

under Turner v. Safley, 482 U.S. 78, 89 (1987), for a prison official to insist to the

reporting victim, that a fellow prison official's conduct was not a crime.

Standard of Review

According to 18 U.S.C. § 1512. Tampering with a witness, victim, or an informant:

(b)

Whoever knowingly uses intimidation, threatens or corruptly

persuades another person, or attempts to do so, or engages in

misleading conduct toward another person, with intent to-(3)

hinder, delay, or prevent the communication to a law

enforcement officer or judge of the United States of information

relating to the commission or possible commission of a Federal

offense or a violation of conditions of probation, supervised

release, parole, or release pending judicial proceedings;

Relevant Facts

With the above demonstrated unlawful actions, (1 38), and believing that no one is

supposed to be above the law, the plaintiff sought to Petition the Government

(federal law enforcement) for a Redress of Grievances (register a criminal

complaint).

Yet, four of the other six prison official defendants insisted their fellow prison

official's conduct was not a crime, and refused to allow the plaintiff to register a

complaint with federal law enforcement.

With the remaining two prison official defendants ignoring the plaintiffs

declaration under penalty of perjury, mailed to each.

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Further, the plaintiff alleged these repeated refusals to act, or permit the plaintiff

to register a complaint, were part of a larger prison

policy requiring prison officials to suppress, interfere with, and disallow

prisoners the ability to register criminal complaints with outside local, state,

and/or federal law enforcement

(Appendix K, p. 4, 1 1), amounting to a de facto "Misprision Policy", (idem).

With such conduct denying the plaintiff his First Amendment right to Petition the

Government (federal law enforcement) for a Redress of Grievances (register a

criminal complaint).

Or, as the district court referred to it, (Appendix A, p. 7, ¶ top):

Plaintiff, however, relied on a proclaimed constitutional right to report the

alleged criminal acts as the basis for his claims.

Tenth Circuit's Opinion

According to the appellate court, (Appendix B, p. 9-10):

All of Mr. Fletcher's claims against the other defendants are based upon their

failure or refusal to report to law enforcement authorities his so-called

criminal victimization, specifically Ms. Schwartz's alleged criminal violation

of his First Amendment rights under 18 U.S.C. § 242.

Thus, absent facts supporting a plausible criminal violation by Ms. Schwartz,

Mr. Fletcher's claims against the other defendants likewise fail to plausibly

assert constitutional violations based on their failure or refusal to report his

alleged "criminal victimization" by Ms. Schwartz.

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ii.

Conflict with Federal Constitution

54.

Question Presented

Whether the Constitution and the laws of the United States are the supreme law

within prison walls.

Standard of Review

According to Article VI, Clause 2, of the United States Constitution:

This Constitution, and the Laws of the United States which shall be made in

Pursuance thereof. shall be the supreme Law of the Land[.]

Tenth Circuit's Opinion

According to the appellate court, (Appendix B, p. 6):

Prisons are a unique environment, and the Supreme Court has repeatedly

recognized that the role of the Constitution within their walls is quite

limited.

Supreme Court's Opinion

According to Turner v. Safley, 482 U.S. 78, 84 (1987):

The first of these principles is that federal courts must take cognizance of the

valid constitutional claims of prison inmates. Prison walls do not form a

barrier separating prison inmates from the protections of the Constitution.

According to Brown v. Plata, 563 U.S. 493, 511, 531 (2011) (internal cite removed):

Courts nevertheless must not shrink from their obligation to "enforce the

constitutional rights of all 'persons,' including prisoners." Courts may not

allow constitutional violations to continue simply because a remedy would

involve intrusion into the realm of prison administration.

This Court has rejected remedial orders that unnecessarily reach out to

improve prison conditions other than those that violate the Constitution. But

the precedents do not suggest that a narrow and otherwise proper remedy for

a constitutional violation is invalid simply because it will have collateral

effects.

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Importance of the Questions Presented

This case presents fundamental questions of the interpretation of this Court's

decision in Turner v. Safley, 482 U.S. 78, 89 (1987) and its application to pro se

prisoner complaints on "initial screening" under 28 U.S.C. § 1915.

The issue is of great public importance due to it affecting the standard of review

used in the lower courts when reviewing in forma pauperis motions submitted

under 28 U.S.C. § 1915 in all 50 states, the District of Columbia, and the

Territories.

In view of the large amount of litigation over prisoner complaints being dismissed

for failing to state a claim upon which relief may be granted, guidance on the issue

is also of great importance to prisoners, as it affects their ability to receive a fair

process when submitting complaints for "initial screening" under 28 U.S.C. § 1915.

The issue's importance is enhanced by the fact that the lower courts have clearly

taken the Court's "deferential standard" for reviewing prisoner's constitutional

claims, as held in Turner v. Safley, 482 U.S. 78, 89 (1987), and extended it to mean

that "violations" of the Constitution and laws of the United States are presumptively

"reasonably related to legitimate penological interests".

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Consider the Tenth Circuit's standard of review used in this case, (Appendix B, p.6,

¶ middle), (quoting Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010)):

Nowhere in the law does context have greater relevance to the validity of a

claim than prisoner civil-rights claims. Prisons are a unique environment,

and the Supreme Court has repeatedly recognized that the role of the

Constitution within their walls is quite limited. Government conduct that

would be unacceptable, even outrageous, in another setting may be

acceptable, even necessary, in a prison. Consequently, a prisoner claim will

often not be plausible unless it recites facts that might well be unnecessary in

other contexts. For example,

a prisoner claim may not be plausible unless

it alleges facts that explain why the usual justifications for the complained-of

acts do not apply.

Gee v. Pacheco goes on to say, (idem):

Although the plausibility standard has been criticized by some as placing an

improper burden on plaintiffs, denying them proper access to the courts, that

criticism ordinarily would not apply to the restrictions on prisoner complaints

described above. One of the chief concerns of critics is that plaintiffs will need

discovery before they can satisfy plausibility requirements when there is

asymmetry of information, with the defendants having all the evidence. But

prisoners claiming constitutional violations by officers within the prison will

rarely suffer from information asymmetry. Not only do prisoners ordinarily

know what has happened to them; but they will have learned how the

institution has defended the challenged conduct when they pursue the

administrative claims that they must bring as a prerequisite to filing suit.

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65.

The above demonstrating the Court's "deferential standard" for reviewing prisoner's

constitutional claims, is in desperate need of clarification.

66.

For instance:

how much deference should the lower courts give to prison regulations which

impinge on prisoners' constitutional rights;

does the deferential standard equate to a presumption of validity;

when does impingement become the outright violation of prisons'

constitutional rights;

does the violation of prisoners' constitutional rights still get reviewed under

the deferential standard;

if so, then where does the Supremacy Clause fit into such a deferential

standard;

if not, then does Court's usage of the terms: "deference" and "impinges"

need re-examined, or at least clarified;

does the deferential standard apply to individual prison official's conduct;

does the deferential standard apply to criminal acts by prison officials against

prisoners, as well as constitutional violations; and

does the deferential standard's "reasonably related to legitimate penological

interests" function as a preemptive rebuttal requirement on "initial

screening" under 28 U.S.C. § 1915?

67.

For the above reasons, the lower courts are in clear need of guidance and

clarification on the issues presented.

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X. CONCLUSION

68.

For the above reasons, certiorari should be granted in this case.

69.

In the alternative

under Supreme Court Rule 16.1:

issue a summary disposition on the merits, reversing the Tenth Circuit

ruling; and

remanding this case for further proceedings.

70.

Respectfully submitted this October 23, 2018.

Pro Se Petitioner's Original Signature:

&4i

John Patrick Fletcher

Proceeding Pro Se under 28 U.S.C. § 1654

John P. Fletcher #81478

B.V.C.F. East 1-S-12

P.O. Box 2017

Buena Vista, Colorado 81211

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.