Petition for Writ of Certiorari — Marvin Waddleton, III, Petitioner v. Bernadette Rodriguez, et al.

No. 10

/

IN THE

ORIGINAL

SUPREME COURT OF THE UNITED STATES

FILED

JAN 2 8 2019

Cl-TH5 CLERK

MARVIN III

WADDLETON

—PETITIONER

(Your Name)

vs.

BESNADETTE RODRIGUEZ

et,aL._ RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

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

PETITION FOR WRIT OF CERTIORARI

M#RVIN III WADDLETON

(Your Name)

1697 Fm. 980

(Address)

Huntsville, Texas 77343-3314

(City, State, Zip Code)

936- 295-5756

(Phone Number)

QUESTION (s) PRESENTED

The core of the inquiry.. .That once the provisions of 42 USCS 1997, and

Clear Established Law has been properly satified to over come Quailfied Immunity.

The District Court resolved whether Force was applied in good faith violated

the 6th and 14th Confrontation clause. The Fifth, Sixth and Tenth Circuit

Court of appeals continue to resolve issues in dispute at summary judgment with

out a Trial to cross examine.

LIST OF PARTIES

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

[C]

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:

RESPONDENTS:

OLUFOLk, OLUGBENGA,

DCHO ONGUDU,

kIMEE SALINAS,

CANDICE MOORE,

LOIRE HUDSON,

JACQULAN JAMERSON,

TABLE OF CONTENTS

OPINIONS BELOW........................................................................................................1

JURISDICTION...................................................................................................................

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

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

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

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

INDEX TO APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

APPENDIX B

UNITED STATES DISTRICT COURT SOUTNERN DISTRIST OF TEXAS,

APPENDIX C

UNITED STATES Magistrate Finding and Recommendations.;

APPENDIX D

UNITED STATES COURT OF APPEAL DENIAL OF REHEARING:

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

PAGE

Anderson V. Creighton 107 S.Ct. 3034

61

Anderson v. Liberty Lobby 106 S.Ct. 2505

81

Ashcroft v. al Kidd 131 S.Ct. 2074

6,

Brosseau V. Haugen, 125 S-Ct. 596

Brown, V. Lippard, 472 F.3d 384,

91

Camereta v. Greene 131 S.Ct. 2020

61

Coy v. Iowa, 108 S.Ct. 2798,

11,

Crawford v. Washington, 124 S.Ct. 134

11,

Cruiley v. City of St Paul 324 F3d 1003,

Davis v. Washington, 126 S.ct. 2266,

11,

Din v. Massachutts, 129 S-Ct. 2527,

91

Glen v. City of Tyler, 242 F3d, 307,

7,

Gomez v. Chandler, i3 F3d 921,

91

Graham v. Connor, 490 U.S. 386,

8,

Hope V. Pelzer 122 S.Ct. 2508,

6,8,

Hudson v. McMillians, 112 S.Ct. 995

61

Kentucky v. Stincer, 107 S.Ct. 2658,

91 11,

Motes V. United States, 20 S-ct. 993,

91

Overton v. Bazzetta, 128 S.Ct. 2162

91

Pearson v. Callahan 129 S.Ct. 808

6,8,

Reichle v Howards, 132 S.Ct. 2088,

6,

Saucier, V. Katez, 533 U.S. 194,

8,

Scott v. HArris, 127 S.Ct. 1769,

81

Traver v. City of Edna, 401 F3d 745,

7,

Turner v. Safely, 107 S.ct. 2254,

91

Wilkins v. Gaddy, 130 S.Ct. 1175,

6,

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 A'

the petition and is

[ ] 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 B'

the petition and is

; or,

[ ] reported at

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

[X] is unpublished.

[ ] For cases from state courts:

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

to the petition and is

Appendix

; or,

[1 reported at

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

[ I is unpublished.

court

The opinion of the

to the petition and is

appears at Appendix

[] reported at

; or,

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

[ I is unpublished.

-

1.

to

to

JURISDICTION

{ d For cases from federal courts:

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

was Sêptertbet 071 2018

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

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

Appeals on the following date: November 01, 2018

, and a copy of the

order denying rehearing appears at Appendix U

[] 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

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

and a copy of the order denying rehearing

appears at Appendix

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

to and including

(date) in

(date) on

Application No. _A______

________________

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

2.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution Sixth amendment Confrontation clause and Right

to a Jury.

United States Constitution Eight amendment Cruel and Unusual Treatment-punishment

Civil Rights of Institutionalized Person Act- 42 U.S.C. § 1997 (e) Prison

Litigation Reform Act

42 U.S.C-S.

1983

United States Constitution 14 Fourteenth amendment Equal protection and due

process clause as applied to the States.

STATEMENT OF THE CASE

The core of this case involve a minority African Indian American Citizen

born cripple, disable now, now in a State of Texas prison. Assaulted, Rarrassed

and Retaliated against by. person's working under color of state Law in the south

Unreasonable excessive force placed Ptetioner in fear of causing serious body

harm to his person by corporal punishment. The defendants denial of Access to

Court and Conspired to deny Medical treatement some 21 days after causing

permanment serious bodily injury.

On the 04th of October 2012, thereby having an official Administration

pass for the Law Library from 7:00 to 9:00am presented pass to Ms. C. Moore and

signed the Log, as she inspected my legal material for contraband (le. weapons

phones, drugs, or money). In retaliation for filing a greivance that her

befriended in the Greivance Department would not process that filed another that

caused her to get fired- See Intial dis. p. 60,61 Grievance 2012196172 on

7/13/2012 T. McCullough did not process had to file grievance on her. And the

retalation for filine complaint on the condition of confinement (ie unreasonable

visual cavity search). Ms. Moore claimed that a scratch piece of paper that

had x,o. from a domino game was contraband and to leave the Law library, which

I refused. Legal material is confidential and can not be subjected to unreasonable search by reading without prior written Authorization from the Warden

befor&legal material can be read- TDCJ policy 1-185-186, See Also Ruiz v.

Estella, 666 F2d. 854,871.; See (Inital. Discl. p.65) a scratch paper that had

x and o, non threaten non-dangerous peice of paper.

When Waddleton stated

that Ms. Moore cannot run this Law Library making her own rules, that must be

removed from her position, that her acts violate Federal law and TDCJ Polict.

She made a false allegation that he threaten her to justifiy calling ICS which

I did not.

'A

'p

STATEMENT OF THE CASE

Having done nothing wrong and TDCJ Policy supersede an order by an officer, but

being a control freek, Abuse of office, irrational and overbearing. When Lt.

Rodriguez arrived at the Law Library was sitting down at my assigned table doing

my research, which was Authorized to be in such place, explained to her and

showed the peice of paper that Ms. Moore was going berserk over. She then

asked me to leave with and we proceeded to leave and then thats when Ms. Moore

claimed that I'd threaten her and at that point almost out the door was ordered

to be placed in cuffs, which I did without any aggression or resistance. Was

ordered to turn around for cuffs, stated that I've got a front handcuff pass

See (Supp. Discl. p 563, 6-26/12 x 6 months) presented it to Sgt. Salinas, she

readed it gave it back and placed the handcuffs on. In the process had set my

Legal Material on a table or kart, the other Olufola, Olugenga tryed to force

me to leave it, and applied pressure to prevent me from getting it, Sgt. Salines

ordered his to get it. In requesting that they gi'ze me my Legal property that

they had no right to confiscate, so we stopped at 12 Building gate until they

gave my legal material, which they did.

When Lt. Rodriguez ordered them to place me on the wall which had nothing

to do with proceeding to the door of 11 building other than a malicious, sadistically and wanton act to cause me harm. Rodriguez and Salines placed there

hand on my back and started pushing force to walk faster to ram my head into

the wall. For fear of failing and stracking my head on the wall turned and

put my back against the wall, hands down holding my Legal material under my arm

and hands cuff holding my cane. She then ordered the 10 or so -officers :to

slam me to the ground. Those group of officers attacked me jumping on my back

lick a pack of wild dogs. As we fell I roiled to keep them from falling on me.

This is not shown on the DV]). Once on the ground Sgt. Salines was sitting on

my shoulder which caused injury also.

tip

STATEMENT OF THE CASE

In a effort to conspire to cover injurys Lt. Rodriguez only took pictures

of my face and Nurse Roell just looked through the door which had plexglass and

mostly covered with steel. Then after sending a sick call about the injuries

and Medication that wasdestoryed, P.A. C. Hudson refuse to exmine the injuries

from the U.O.F. and only refile the Medication. See (Supp-Disclo. p. 635).

Lt. B. Rodriguez continue malicious, sadisitically and wanton acts continue

again once housed on 12 building- After she threaten U.O.F. of use of five (5)

man team for not submitting to handcuffs behind my back -for cell search. Pass

didnot expire until 1/26/13, See (Supp. Discl. p. 563). Because 11 and 12

building on the McConnell Unit where most deaths of inmates occur, knew at

that point.., my life was at risk. With each filing by the Defendants and

the Court has added a twist to the facts without any referance to where that

information can be found.

WITHOUT A JURY TRIAL TO CROSS EXAMINE THE DV)), DEFENDANTS, WITNESS AND PRESENT

OTHER EVIDENCE AS TO DETERMINE HOW THE FORCE WAS APPLIED WOULD VIOLATE THE

RIGHT TO JURY TRIAL AND CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT:

5.

REASONS FOR GRANTING THE PETITION

To prevent the Abuse of Court discreation by the District court and Circuit

Appeals court at Summary judgment stage without a trial to cross-examine the

Defendants credibility determinations of the weight of the evidence andthe

drawing of léitimate inferences from the facts are jury functions, not those

of a judge. Whether force was applied in good faith or malicious and sadistically

are for the jury.

The District court dismissal was based on that the defendants were entitle

to qualified immunity.

Qualified immunity shall be granted when on the ground that a purported

right was not clearly established by prior case law. Pearson v. Callahan,

555 U.S. 223,236, 129 S.Ct. 808, (2009); Camereta v- Greene, 563

U.S.

131 S.Ct. 2020, (2011); The right allegedly violated must be

clearly established not as a broad general proposition. Reichie v. Howards,

566 U.S. 658, 132 S.Ct. 2088, (2012); Brosseau v. Haugen, 543 U.S.

194,198, 125 5.Ct. 596, (2004); That every reasonable offical would

[have understood] that what he is doing violates that right. Ashcroft v.

al-Kidd 563 U.S.131 2074, (2011) QUOTING Anderson v. Creighton,

483

U.S. 635, 640, 107 S.Ct. 3034 (1987);

The right of prisoner's from excessive force that cause injury, see Wilkins

v. Gaddy, 130 S.Ct. 1175.1176 (2010): has substain Fhjdson v, McMill-

ians, 503 U.S. 1,4, 112 S.Ct- 995, (1992) That the use of excessive

force against a prisoner may constitute cruel and unusaly punishment [even]

when the inmate does not suffer serious injury. Then when handcuff are used

to cause injury by being too tight or for long periods ofrtime has clearly

been established. Hope v. Pelzer, 536 u.S. 730, 122 S.Ct. 2508 (2002):

142

Inmate was subjected to cruel and unusual punishment in violation of the

eighth amendment when prison guards handcuffed him to hitching post for disruptive behavior, despite having him already been subdued; In Glenn v. City of

Tyler, 242 F3d 307,314; Held that handcuffing too tightly, without more

does not amount to excessive force. AccordlyCrusly v. City of St. Paul

324 F3d 1003,1038; reaffirming a prior holding requiring medical records

establishing permanent injury before allowing the application of handcuff to

give rise to an excessive force claim. See also Tarver v. City of Edna,

401 F3d 745 (5th Cir. 2005) at 752; Mr. Naddleton suffered injury

to his right shoulder, both wrist, and both ankles, and back when security

staff an already handcuffed disable prisoner. Slammed him to the ground then

piled on top of him, some siting on top on his side. Picked him up by the cuffs

and leg restrains and placed on the gurney, applied unnessary pressure on the

handcuffs and leg shakles to the point the cuffs cut into his skin and has

caused permanent nerve damage, broken viens that has caused circulation problems.

See (Supp. Disci. p. 274-75) Clinic Notes from 10/25/12 by Echavarry Erick Pa.

Post U.O.F. report cuts bruses, Nerve extremely pain; (Supp. Disci. p. 271-73)

11/13/12 MD Theresa, Whitt in pain, hands loss senation in both index fingers

neuropathy affecting bilateral index finger; (Supp Disclo. p. 254-55). On

the 3/13/13 by MD. T. Whitt U.O.F. numbness peroneal nerve, Hypersensitivity:

of lateral foot and ankles. Due to the 25 minutes or so that the cuffs were

to tight that has caused damage to the blood veins, Hematone around the area

cuffs around my ankles, caused circulation problems after almost 6 years.

Reaffirming a prior holding requiring Medical records establishing permanent

injury before allowing the application of handcuffs to give rise to an

excessive force claim. Cruiley v City of St. Paul 324, F3d 1008;

Tarverv. City of Edna, 410 F3d 752;

7.

In the qualified immunity context at summary judgment the court engage in

a two pronged inquire. (1). The facts taken in the light most favorable to the

party show- that the officer conduct violated a Federal right. Saucier v- Katez,

533 U.S. 194,201. Excessive force during an investigation or arrest, the

Federal right at issue is the Fourth right against unreasonable seizures.

Under a prisoner it's an Eighth amendment right. Graham V. Connor, 490 U.S.

386,394; Hope v. Pelzer 536 U.S. 733,739, 122 S.Ct. 2508 (2002).

The second prong of the qualified immunity analysis asks whether the right in

question was clearly established at the time of the violation. Government actors

are sheilded from liability for civil damages, if their actions did not violate

clear established statutory or constitutional rights of which a reasonable

person would have know. Courts have discretion to decide the order in which to

engage those two prongs. Parson v. Callahan, 555 U.S. 223,236; But

under either prong courts may not resolve geninue disputes of facts in favor of

the party seeking summary judgment.

The standard for granting summary judgment 'mirriors the standard for '

-

judgment as a matter of law, court should review all the evidence inthe record

it may not not make creditable determination or weigh the evidence. Anderson

v. Liberty Lobby Inc, 477 U.S. 242 250-1, 106, S.Ct. 2505, (1986).

When opposing parties tell two different stories, one of which is blatanity

contracticted by the record, so that no reasonable jury could believe it a court

should not adopt that version of the facts for purposeâ of ruling on a Motion

for summary judgment. Scott v. Harris, sso U.S. 372, 127 S.Ct. 1769

(2007). Credibility determinations, the weighing of the evidence and

the drawing of legitimate inferences from thefacts are the jury functions, not

those of a judge . Id Liberty Lobby Supra at 255.

up

Written deposition subject to cross-exmination was not admissible because

witness was availiable. Motes v. U . S. 178 U.S. 458,467, 470-71, 20

S.Ct. 993 (1900). The D.V.D. that the defendants provided has omitted the

parts which show there unlawful acts of Bad Faith, and the editing by adding

parts to another Use of Force other than the plaintiff- The D.V.D. does not

show completely what occured nor the actual time that the cuffs cutting into

my ankles and wrist causing permanet damage. in Melendez Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, (2009), held -that at drug trial,

of Affidavits of state Laboratory analysis who did not testify at trial held

to violate accused right under sixth amendment to confront witness against him

because affidavits were testimonial. Mr. Waddleton has the right to confront

the individdal that made the DYD and to show at trial the parts omitted andded

that the D.V.D. has been editied altered to cover the liability actions of

the Defendants. The Plaintiff was sitting at his assigned table and had

requested a Superviosor to settle the dispute about the peice of paper that

had o and x see (Inti. Discl. p. 56) As in Brown V. Lippard, 472 F3d 384

386, (2006) A brief exchange ensued in which Lippard indicated Brown's rec

privilieges were denied. Brown beliving Lippard was set on harrassing him

asked to speak with a superior Officer and sat down to wait for one to arrive.

See also Gomez v. Chandler 163 F3d 921 (5th Cir. 1999).

The Turner v. Safley, 482 U.S. 78,59, 107 5.Ct. 2254, Comes to

the S-Ct after a full trial and the Court's opinion in that case relied

heavely on testimony elicted at trial in evaluating the reasonableness of the

regulation. Also Overton v. Bazzetta, 539 U.S. 126,133, 123 S.Ct

2162, (2003). The right to cross-examine the individual that made the DVD

ensur[e] the integrity of the fact-finding process. Kentucky

736.

9.

,

482 U.S 730

On the 12th of November 2015, the Defendants filed a Motion for Summary

Judgment. And on the 11/19/15 mailed on thel2/03/15 sent notice of another

copy of the DVD that was sent to me on Nov. 10. 2015. However, I did not

receive the notice until 12/08/15 and viewed the DVD on the 12/10/15 the day

I'd mailed my repy. Nowithstanding, having view two other different ThTD in

July, now the Defendants present two more different DVD which still donot

show the complete incident. That in itself should give pause as to reasonable

doubt that the defendants have tampered with evidence. See Exhibit I. As long

as the Courts and Prosecutor condone the assault and killing of citizen, people

in the U.S.A simply because they are Public Servants or Peace Officers, then

You'll have only given them a liecense to kill and assault.

The D.V.D. does not show Mr. Waddleton sitting at his table doing his

research when Lt. Rodriguez arriveed, nor the Officers pushing him at a fast

paean towards the wall , which had nothing to do with going to 11 or 12

Building, where officers once isolated and handcuff assault and Kill Offenders

on the McConnell Unit Beeville Texas.

Without a jury trial to confront the defendants and show the parts omitted

by the defendants DVD Use of Force of the malicious and sadisticaly actions

ordered by Lt. Rodriguez without any reason did not resist being escorted to

11 Building, other than to get my Legal material. Futhermore, ther's nothing

in the record to support the attorney general theocy other than the altered D

VD thats take two different incident and person's to make there theory-story

seem true . A summons was issued (Doc. 12) Under seal as to Lt. Bernadetta

Rodrigues, Aimee Salinas and Ongudu on the 04/21/15 filed hand delivered to

USm. Thus all defendants have been notified but the Lt. Rodriguez that gave

the orders have fail to respond and the District Court proceeded without

the main individual.

10.

Thus, after reviewing the last DVD on the 10th of December 2015, saw OptJamerson while at 11 building, when asking for some one to check and loosen

the leg and wrist cuff. But she done nothing. Because, the District court

denied me to amend to add C. Moore, Cpt. Jamerson, C. Hudson and Roell for

the denial of medical treatment from the injuries., which also is a violation

of the eighth amendment.

To confront Lt. Rodriguez about her motive and the individual that made

the D.V.D. and to show at trial the parts omitted, added, that the DVD hads been

altered to cover the liability actions of the Defendants.

In Davis v. Washington, 547 U.S. 813, 126 s.Ct. 2266 (2006);

)\niy was subpoeniaed, but she did not appear at the subsequent bench trial. In

Crawford v. Washington, 541 U.S. 36,53-54, 124 s.Ct. 1354 (2004).

Held that this provision bars "admission of testimonal statements of the witness

who did not appear at trial unless they were unavailable to testify, and defendant had had a prior opportunity for cross-examination. Subject to the confrontation clause statements taken by police officers in the course of interrogations,

recording while she was in police custody after having been given Miranda

warnings as a possible suspect herself. Like the eye witness who has fabricated

his account to the police-court the analyst who provides false results may

under oath in open court, reconsider his false testimony- Coy v. Iowa, 487

s. 1012, 1019, 108 S-Ct- 2798, (1988). The right to cross-examine the

accuser both ensure the intergrity of the fact-finding process. Kentucky

Stincer, 482 U.S. 730,736 107 5.Ct. 2658, (1987); The Confrontation

Clause guarantees the defendant a face to face meeting with witness appearing

before the trier of fact. Id. at 748-750;

To determine the issue of good or bad faith of the officers cannot be done

without a trial to cross examine the person that made the DVD and the Defendants.

11.

To substain a claim of excessive force in violation of the 8th amendment

a show of medical records to support the injury, which Mr. Waddleton has

provided. Thus, the issue as to good or bad faith has been opposed by both

sides as to what happen that only can be resolve in a jury trial to confront

the person that made the DVD

,

Defendants

.,

Witness and present other evidence.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: Awd

'a A7 W17

12-