Petition for Writ of Certiorari — Elvert S. Briscoe, Jr., Petitioner v. Annette Chambers-Smith, Director, Ohio Rehabilitation and Correction, et al.

Supreme Court briefSep 22, 2020

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OCTOBER 2019 TERM

Supreme Court, U.S.

FILED

IN THE

SEP 2 2 2020

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

ELVERT S. BRISCOE-PETITIONER

vs.

GARY MOHR, ODRC DIRECTOR, ET AL.-RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ELVERT S. BRISCOE, JR. #A368171

TOLEDO CORRECTIONAL INSTITUTION

2001 EAST CENTRAL AVENUE

TOLEDO, OHIO 43608

QUESTIONS PRESENTED

Liberty Interest

Can an action by a prison disciplinary hearing that is

a violation of the First Amendment, Eighth Amendment,

or Equal Protection Clause give a liberty interest or

is "atypical and significant hardship"?

Sandin v. Connor, 515 U.S. 472 (1995).

Eighth Amendment

When under "cloak" of an apparent security measure,

that leads to pain and injury, is argued excessive

force in "bad faith," or from another constitutional

violation, or was totally without penological justifi

cation able to state a claim and survive dismissal

under 28 U.S.C. § 1915(e)(2)(B)?

Can a claim of intentional guilt of a knowingly false

and retaliatory disciplinary charge, that leads to

punitive awkward specialized handcuffing for several

hours that causes pain and injury, that is argued

excessive force in "bad faith" or totally without

penological justification able to state a claim and

survive dismissal under 28 U.S.C. § 1915(e)(2)(B)?

Whitley v. Albers, 475 U.S. 312 (1982); Hudson v. McMillian,

503 U.S. 1 (1992); Hope v, Pelzer, 536 U.S, 730 (2002).

■si

rEqual Protection

Is the Sixth Circuit's ruling that "similarly situated"

must be "similarly situated in all respects" and the

determination of a relevant factor contrary to or in

conflict with this Court or other Circuit Courts on

probative comparators?

Nordlinger v, Hahn, 505 U.S. 1 (1992); Miller-El v. Dretke,

545 U.S. 231 (2005).

When a prison intentionally denies to investigate a

claim of a retaliatory set up by an inmate, but

investigates a claim of a set up by the retaliating

inmate for illegitimate reasons, is that action a

violation of equal protection?

Can the Court clarify Olech class of one claims and

if "subjective ill will" "irrational and wholly

arbitrary," or a pretextual action?

Olech v. Willowbrook, 160 F.3d 386 (CA7 1998), aff'd other

grounds Willowbrook v. Olech, 528 U.S. 562 (2000).

LIST OF PARTIES

Gary Mohr, ODRC Director;

Lashann Eppinger, Warden;

Keith Foley, Deputy Warden;

Jennifer Gillece, Deputy Warden;

Steve Weishar, Investigator;

Lt. Nicholaus Costello, Rules Infraction Board (RIB), Chairman;

Mark "Marcello" Hurayt, inmate #A523727;* and

John Does, inclusive.

Respondent Hurayt has not appeared after being served.

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Procedural Due Process

Equal Protection

Cruel and Unusual Punishment

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

Order United States Court of Appeals for the Sixth

Circuit, Briscoe v. Mohr, et al • t No. 19-3306 (March 16, 2020)

APPENDIX B

Order & Opinion United States District Court for

the Northern District of Ohio, Briscoe v. Mohr, et al • 9

No 1:18CV02417 (March 8, 2019)

APPENDIX C

Order United States Court of Appeals for the Sixth

Circuit, Briscoe v. Mohr, et al • 9 No. 19-3306 (June 15, 2020)

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Allah v. Seiverling, 229 F3d 200 (CA3 2000)

Ariz. Dream Act Coalition v. Brewer, 855 F3d 957 (CA9 2017)

32,36

Austin v. Wilkinson, 189 FS2d 719 (ND Ohio 2002)

Bartell v. Aurora Pub. Schs • > 263 F3d 1143 (CA10 2001 )

Cantu v. Jones, 293 F3d 839 (CAS 2002)

Ciechon v. City of Chicago, 686 F2d 511 (CA7 1982)

Cobb v. Pozzi, 363 F3d 89 (CA2 2003)

Cordi-Allen v. Conlon, 494 F3d 245 (CA1 2007)

Crawford-El v. Britton, 523 U.S. 574 (1998)

Curry v. Scott, 249 F3d 493 (CA6 2001)

Davidson v. Flynn, 32 F3d 27 (CA2 1994)

34,35

Davis v. Coakley, 802 F3d 128 (CA1 2015)

14-16,18,26,28

Demuria v. Hawkes, 328 F3d 704 (CA2 2003)

Deshaney v. Winnebago Cty. Dep't of Soc. Serv • t 489 U.S.

189 (1989)

9,32

Duncan v. Louisiana, 391 U.S. 145 (1968)

Farmer v. Brennan, 511 U.S. 825 (1994)

Geinosky v. City of Chicago, 675 F3d 743 (CA7 2012)

Giarratano v. Johnson, 521 F3d 298 (CA4 2008)

27,28

Griffin Indus, v. Irvin, 496 F3d 1189 (CA11 2007)

15-17,23

Hilton v. City of Wheeling, 209 F3d 1005 (CA7 2000)

20,25,27

Hope v. Pelzer, 536 U.S. 730 (2002)

Hu v. City of New York, 927 F3d 81 (CA2 2019)

Hudson v. McMillian, 503 U.S. 1 (1992)

10,32,34,36

32,34,36

Humphries v. CBOCS West, Inc • 9 474 F3d 387 (CA7 2007),

aff'd CBOCS West v. Humphries, 533 U.S. 442 (2008)

15,16,23,25

TABLE OF AUTHORITIES, cont.

CASES

PAGE NUMBER

Jacobs v. City of Chicago, 215 F3d 758 (CA7 2003)

19,21

Jennings v. City of Stillwater, 383 F3d 1199 (CA10 2004) 15,16,23

Jones v. Bock, 549 U.S. 199 (2007)

Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)

18,24,28

King v. McCarty, 781 F3d 889 (CA7 2015)

Kopec v. Tate, 361 F3d 772 (CA3 2004)

Kostrezwa v. City of Troy, 247 F3d 633 (CA6 2001)

LeClair v. Saunders, 627 F2d 606 (CA2 1980)

Lindquist v. City of Pasadena, 669 F3d 225 (CA5 2012)

1 5-17

Lugar v. Edmondson Oil Co • 9 457 U.S. 922 (1982)

30,31

Marcelie v. Brown Cty. Corp • 9 680 F3d 887 (CA7 2012)

16,27

McCottrell v. White, 933 F3d 651 (CA7 2019)

McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973)

Miller-El v. Dretke, 545 U.S. 231 (2005)

19-21

13,14,17,20,21,23,25

Morrison v. Bd. of Trs. of Green Twp • t 583 F3d 394 (CA6 2009)

Neilson v. D’Angelis, 409 F3d 100 (CA2 2005)

15-17

Mishiyama v. Dickson Cty • 9 814 F2d 277 (CA6 1987)

Nordlinger v. Hahn, 505 U.S. 1 (1992)

13,14,17,18,24,28

Olech v. Willowbrook, 160 F3d 386 (CA7 1998)

14,19,20,26,29

Perry v. Sinderman, 408 U.S. 593 (1972)

Philliphs v. Cty. of Allegheny, 515 F3d 224 (CA3 2008)

Ponte v. Real, 471 U.S. 497 (1985)

Quinn v. Bd. of Cty. Comm'rs for Queen Anne's Cty • 9

862 F3d 433 (CA4 2017)

11,21

TABLE OF AUTHORITIES CITED, cont.

CASES

PAGE NUMBER

18,23

Reed v. Reed, 404 U.S. 71 (1974)

Rhodes v. Chapman, 452 U.S. 337 (1981)

Robbins v. Becker, 794 F3d 988 (CA8 2015)

Robins v. Meecham, 60 F3d 1436 (CA9 1995)

Sandin v. Connor, 515 U.S. 472 (1995)

Shipp v. McMahon, 234 F3d 907 (CAS 2000)

Smith v. Mensinger, 293 F3d 641 (CA3 2002)

Squaw Valley Dev. Co. v. Goldberg, 375 F3d 936 (CA9 2004)

Staples v. Gerry, 923 F3d 7 (CA1 2019)

Startzell v. City of Philadelphia, 533 F3d 183 (CA3 2008)

State ex rel. Keith v. OAPA, 2014 Ohio 4270

State v. Lewis, 2000 Ohio 2011

Stepnes v. Ritschel, 663 F3d 952 (CA6 2011)

Turner v. Safely, 482 U.S. 78 (1987)

Tx. Dep't of Cmty. Affairs v. Burdine, 450

U.S. 248 (1981)

Warren v. City Athens, 411 F3d 697 (CA6 2005)

Whitley v. Albers, 475 U.S. 312 (1986)

17,18,28

15,17,20,25

19,20

32,34,36

Wilkinson v. Austin, 545 U.S. 209 (2005)

11-13

Willowbrook v. Olech, 528 U.S. 562 (2000)

14-16,18,26,28

Wolff v. McDonnell, 418 U.S. 539 (1974)

11,24,25

IN THE

SUPREME COURT OP THE UNITED STATES

Petition for Writ of Certiorari

Petitoner respectfully prays that a Writ of Certiorari issue

to review the judgment and questions below.

OPINIONS BELOW

The opinion of the United States court of appeals appears

at Appendix A to the petition and is unpublished-Briscoe v. Mohr,

et al • f Case No. 19-3306,

The opinion of the United States district court appears at

Appendix B to the petition and is unpublished-Briscoe v. Mohr, et

al., Case No. 1:18CV02417,

JURISDICTION

The date on which the United States Court of Appeals decided

this case was March 16, 2020.

A timely petition for rehearing was denied by the United

States Court of Appeals on June 15, 2020, and a copy of the order

denying rehearing appears at Appendix C.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S.C.A. First Amendment

Congress shall make no law respecting • • • or abridging

the freedom of speech • • • and to petition the Government for

a redress of grievances.

U.S.C.A. Eighth Amendment

• • • nor

cruel and unusual punishments inflicted.

U.S.C.A. Fourteenth Amendment

§ 1.

• • m

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. §1915(e)

* * *

(2)

Notwithstanding any filing fee, or any portion thereof,

that may have been paid, the court shall dismiss the case at any

time if the court determines that—

(B)

the action or appeal—

(i)

is frivolous or malicious;

(ii)

fails to state a claim on which relief may be

granted; or

(iii)

seeks monetary relief against a defendant who is

immune from such reliefs----

STATEMENT OF THE CASE

Elvert S. Briscoe, Jr • 9 an Ohio prisoner proceeding pro se,

Petitions for a Writ of Certiorari from the United States Court

of Appeals for the Sixth Circuit's judgment affirming in part

and vacation in part and remanding the district court's judgment

dismissing his complaint brought pursuant to 42 U.S.C. §1983,

sua sponte for failing to state a claim pursuant to 28 U.S.C.

S 1915(e)(2)(B).

In October 2018, Briscoe brought this action against the

Director of the Ohio Department of Rehabilitation and Correction

(ODRC), Gary Mohr; Warden of the Grafton Correctional Complex

(GCC),

Lashann Eppinger; Deputy Wardens Keith Foley and Jennifer

Gillece; Institutional Investigator, Steve Weishar; Rules Infrac

tions Board Chairman, Nicholaus Costello, and Mark "Marcello"

Hurayt, inmate #A523727.

Briscoe's complaint originates from a

2016 Rules Infraction Board (RIB) decision finding him guilty of

attempting and planning an escape, which resulted in "black box"

restraints because of raised security status and transfer to a

maximum security prison.

Briscoe alleged that the charge was

based on false retaliatory allegation from Hurayt, Foley, Weishar,

Costello and Eppinger after Briscoe had reported Hurayt for

inappropriate uses of a flash drive, computers and for making

false reports.

Briscoe therefore claimed that: (1) his right to

due process of law was violated by the filing of a known false

* GCC has two prisons-Grafton Correctional Institution (GCI),

with level 2 inmates; and Grafton Reintergration Center (GRC),

with level 1 inmates for Re-entry programs.

retaliatory Cl charge against him, the denial of a fair and

impartial hearing, and the lack of evidence supporting his

disciplinary violation; (2) the disciplinary charge was filed

against him out of retaliation for his submitting complaints

concerning Hurayt; (3) his right to equal protection was violated

because the ODRC defendants conducted a thorough investigation

of the charge by Hurayt that Briscoe planted the flash drive with

"child porn" on it and then told ("set Him up"), then his claim

that Hurayt provided false information twice in retaliation ("set

Him up"), and that impinged fundamental rights of retaliation,

due process; and cruel and unusual punishment; and (4) his right

to be free from cruel and unusual punishment was violated when he

was restrained in punitive "black box" handcuffs for several

hours causing pain and injury, and when ODRC defendants failed to

protect him from Hurayt's Cl attack and each other.

On appeal, Briscoe argued that he had offered sufficient

allegations in the complaint to survive dismissal had reiterated

his due process, retaliation, equal protection and excessive

force claims.

The Sixth Circuit ruled Briscoe abandoned any

state-law claim for intentional infliction of emotional distress

citing Radvansky v. City of Olmsted Falls, 395 F.3d 291,311

(CA6 2005). [1]

[1]

The district court did not rule on the IIED state law claim

or other constitutional claims because of other claims

dismissed. (R.5 Opinion Page ID# 163-164 fn.1).

Facts

This case started out as a retaliatory assault and harm

by Mark "Marcello" Hurayt, a confidential informant/inmate, upon

Petitioner Elvert S. Briscoe, Jr.

It quickly metamorphosing into

multiple Constitutional violations by Hurayt and various Ohio

Department of Rehabilitation & Corrections (ODRC), Staff.

Briscoe, and three codefendants, were residents at the

Grafton Reintegration Center (GRC), part of the Grafton Correc

tional Complex (GCC).

Three of the four were Program Aides (PA),

in various computer labs; and entrusted to train inmates and

aversee those labs. (R.1, Compl. J[ff3,13.14,1 6.18) All three PA's

reported to Staff of Hurayt having a flash drive.

In May 2016 Hurayt was transferred to GRC from Grafton

Correctional Institution (GCI), also part of GCC.

Hurayt went to

various computer labs and began a campaign of nefarious conduct.

(R.1, Compl. flfl14-18) Briscoe discovered Hurayt's legal work

on computers; overheard Hurayt say that Briscoe was connection

to print and counseled Hurayt.

Hurayt removed the legal work

by using a "usb stick," aka "flash" or "thumb" drive.

After

that Hurayt received a religious library software that he tried

to download and disabled that computer.

Briscoe went to his

supervisor and Hurayt was removed from that lab.

(R.1, Compl.

flfl16,17) Shortly before this, "child porn" or porn was found

on computers in GCI.

This was also reported on computers in

the Braille lab at GRC.

conduct.

PA's were told to watch for all illegal

(R.1, Compl. fl15)

On July 11, 2016 a ODRC Staff who believed Hurayt had a

flash drive initiated a shakedown (Search), of Hurayt's bunk.

A flash drive and “Church CD" software were found.

Hurayt told

various Staff it was Briscoe's, “He got it from [Briscoe]i"

(R.1, Compl. fl19) Briscoe was searched and stripped.

was found.

Nothing

ODRC Staff approached and explained that Hurayt

said Briscoe gave him the flash drive.

It was immediately found

out the flash drive came from the GCI library.

Briscoe explained

to a Sergeant Andrew Wurstner that Hurayt was retaliating and

talked about sending a kite to Weishar.

to do so,

It was recommended

A kite dated July 11, 2016 was signed by Briscoe's

supervisor, a copy made and kept; and sent.

(R.1 Compl. ftfl20-

22,77)

On July 13, 2016 Briscoe and codefendants were placed under

investigation by Weishar for escape from Hurayt's statement.

When questioned by Weishar, Briscoe stated the retaliatory motive

of Hurayt and kite sent.

(R.1 Compl. ]]13) No escape contraband

was found.

During the last week of July 2016 there were two letters

wrote by Hurayt asking inmates to be a witness, to lie, and he

was willing to pay $300.00 dollars for this perjured testimony.

These letters were delivered to Major David Brown and Warden's

Assistant Adam Kastler; and the second to Case Manager Maria

Gentile that she e-mailed to Weishar on August 3rd.

Briscoe

went to Weishar's office on August 4th about the e-mail and

the July 11th kite that was shown received.

■5

(R.1 Compl. flf[27-

30) Later from another later by Hurayt dated August 29, 2016,

Hurayt calls Foley who is out for foot surgery and pleads for

help.

Just when Hurayt "thought I would Lose. My friend" Foley

calls GCI to set up a lie detector test that he takes twice on

August 16, 2016.

On August 19, 2016 the ticket is against Hurayt was dropped

and an investigation to "why someone would want to 'set Him up I >1

is started by Gillece, Foley and others,

back to Restrictive Housing (RH).

Gillece moves Briscoe

On August 26-29, 2016 Weishar,

Foley, Gillece, Eppinger, Costello and Hurayt were investigating

and reviewing video of Hurayt's bunk and Ms. Long's office

because Hurayt made another allegation that "Duce and Vies"

placed the usb at his bunk and told Ms. Long it had "child porn"

on it.

Hurayt then tells the inmate that "today" (August 29, 2016),

Duce got a ticket for escape, all of them did and guess who is

the main witness?

Ironically, on this same day Weishar asks

Briscoe and codefendants do they want to "get this over with"

by taking CVSA tests.

(R.1 Compl. flfl32-40)

On September 1, 2016 Briscoe and codefendants took CVSAs.

On September 30, 2016 the results were given and on October 3,

2016 were charged with a Rule 31 attempting or planning an escape.

(R.1 Compl. JH[40-47,53-54)

On September 15, 2016 a codefendant was given Hurayt’s JP5

e-mails dated 9-3-16 to 9-12-16 to Weishar.

states, "RECAP." "I had to.

On 9-5-16, Hurayt

Because Brisco, Duce and Vic went to

Ms. Long and said Hurayt had a flashdrive." On 9-9-16, Hurayt

threatens Weishar to going to an outside source and telling

everything he has told him.

Weishar moves Briscoe and codefen-

dant back to Limited Privileged Housing (LPH), and Hurayt to RH.

(R. 1 Compl. 115148,50-52)

RIB hearings were held on October 7, 2016 and combined as

one record*

Camera footage, phone records, and Hurayt's letters

and e-mails were asked to be submitted by Weishar, but were not

turned over to the RIB.

(R.1 Compl. HK55,57-63,70)

There was

a split 1-1 vote and Eppinger intentionally appointed Foley to

cast the deadlock vote.

As a result, Briscoe was found guilty,

had security raised to maximum which caused him to be restrained

in special "black box" handcuffs that contorted his arms and

wrists that caused unnecessary and wanton pain and injury because

of the awkward position for several hours,

If not for the guilty

verdict and "discretionary override" for escape, "black box"

restraints would not have been required for transfer.

REASONS FOR GRANTING THE WRIT

Supreme Court Rule 10(a), states that a compelling reason

for this Court's discretionary review is if "a United States

court of appeals has entered a decision in conflict with the

decision of another United States court of appeals on the same

important matter, has decided an important federal question in

a way that conflicts with a decision by a state court of last

resort • • • as to call for an exercise of this Court's supervisory

power" or under Rule 10(c), " • • • a United States court of appeals

has decided an important question of federal law that has not

been, but should be, settled by this Court, or has decided an

important federal question in a way that conflicts with relevant

decisions of this Court."

Many of the rights guaranteed by the first eight Amendments

are substantive liberties protected through the procedural

protections of the Due Process Clause of the Fourteenth Amendment.

Duncan v, Louisiana, 391 U.S. 145, 148 (1968).

When the State by

the affirmative exercise of its power restrains an individual's

liberty that it renders him unable to care for himself, and

at the same time fails to provide basic reasonable safety it

transgresses substantive limits set by the Eighth Amendment.

The affirmative duty to protect arises from the limitation which

it has imposed on his freedom to act on his own behalf through

incarceration which is the "deprivation of liberty" triggering

the protections of the Due Process Clause.

County Dep't of

Deshaney v, Winnebago

Social Services. 489 U.S. 189, 200 (1989).

A. Procedural Due Process

Briscoe presented liberty claims and right to procedural

due process in a prison disciplinary hearing because the reasons

for the charge of escape, finding of guilt and transfer were

from retaliation, inmate/staff attack or harm, and equal protec

tion without due process.

Sandin v, Conner, 515 U.S. 472, 487

n.11 (1995); Allah v, Seiverling, 229 F3d 220, 223-34 (CA3 2000).

The ruling conflicted with the ability to challenge arbitrary

actions under "the First and Eighth Amendments and Equal Protec

tion Clause," and intentional disciplinary punishment taken

"totally without penological justification" that are an "atypical

and significant hardship." Hope v. Pelzer, 536 U.S. 730, 745

(2002).

Intentional discipline to no misconduct is torture and

not expected within the sentence.

Sandin, 515 U.S. at 485; Hope,

536 U.S. at 744 (sham disciplinary process).

Especially when

pain and injury results, unnecessary and wanton pain.

It is upon first impression that an important liberty claim

should be decided by this Court, but the Sixth Circuit's ruling

is really a conflict.

Briscoe claimed the right to procedural

due process in a prison disciplinary hearing when there is use

of a confidential informant or it could result in additional

criminal charges.

States may create liberty interests which are

protected by the Due Process Clause.

Sandin, 515 U.S. at 483-84.

These interests are freedom from restraint which excede the

sentence in an unexpected manner as to give rise to protection

by the Due Process Clause of its own force, nonetheless imposes

atypical and significant hardship on the inmate.

Id. at 484;

Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974).

If a State has a policy or rule to allow confidential

informants for the purpose of charging prison misconduct, then

procedural due process is needed to protect an accused inmate

from false retaliatory charge by another inmate, and possibly

staff, that also "cloaks" an inmate/staff attack or harm under

cruel and unusual punishment by exploiting the disciplinary

process for their own ends.

Ponte v. Real. 471 U.S. 491, 497

(1985), citing Wolff, 418 U.S. at 563.

"Retaliation is much more

than a theoretical possibility." Wolff, 418 U.S. at 562.

Briscoe

reported Hurayt (the 01), for nefarious activities, then when

Hurayt is caught with.the usb and CD's he turns to the informant

status to harm him.

On a case by case determination, more is

needed then the Cl has given good information before, it is

this seasoned incorrigible inmate that becomes the must dangerous

to exploit the disciplinary process.

The Sixth Circuit rejected the need for procedural due

process in a hearing that could result in a outside criminal

prosecution and the evidence, paperwork and prison staff are

sufficient evidence to support the conviction.

State v, Lewis,

2000 Ohio 2011 at 3, 7-9; Ohio Revised Code (ORC) 2921.34(A)(1).

Under the Ohio sentencing scheme, a new conviction for escape

would be mandatory and a consecutive prison term that would stop

the original sentence and parole eligibility.

Austin, 545 U.S. 209, 215, 222 (2005).

Wilkinson v.

f V

The Sixth Circuit's ruling conflicts with the Ohio Supreme

Court's decision in State ex rel. Keith v. PAPA, 2014 Ohio 4270,

which held that an inmate has a "minimal due process expectation

of actual and accurate information of reports from the ODRC.

Id. at 23, 25.

This grant of "minimal due process" parallels

this Court’s decision in Wolff to the procedures set out in that

ruling.

This gives Ohio inmates at least a liberty or property

interest of accurate disciplinary reports in parole eligibility

hearings.

The Ohio Supreme Court has already determined the

"atypical and significant hardship" of guilt in a constitution

ally deficient hearing:

Requiring the board to consider specific factors

to determine the parolee’s fitness for release would

not mean anything if the board is permitted to rely

on incorrect, and therefore irrelevant, information

about a particular candidate.

State ex rel. Keith, 2014 Ohio 4270 at 23; Perry v. Sindermann,

408 U.S. 593, 601 (1972).

The Sixth Circuit also rejected the need for procedural

due process in a disciplinary hearing for "escape" that results

in a non-discretionary placement at a maximum-security prison

with highly restrictive conditions for an indefinite period of

time.

Wilkinson, 545 U.S. at 213-14.

Once there is a finding

of guilt placement is automatic in one of three stretched across

the State making visits difficult.

There is no classification

committee review within 30-days, where one person can object and

end the process.

Annual review are started by "the top down"

by calling central office (being "red flag"), that they give the

recommendation to decrease or not.

who review the appeal.

isolation.

These are the same people

There is the same 23-hours of cell

An inmate may stillsee the parole board, but "if" a

parole is granted policy prevents him from leaving a maximum

prison.

Id. at 215-17, 223-24.

Moreover, inmates convicted

of escape have certain restrictions placed on them forever and

this status remains if the inmate reoffends twenty years later.

Equal Protection

The Sixth Circuit's ruling to Briscoe's equal protection

claim needs review by Court for several reasons:

First, and

foremost, a definition and guidelines are needed for determi

nation of "similarly situated" comparators and what determines a

relevant respect of a similar comparator.

The Sixth Circuit

ruled that Briscoe and Hurayt were not similarly situated "in all

respects." This determination means that comparators have to

be identical.

This is in conflict with this Court's holding

that comparators do not have to be "identical in all respects."

Miller-El v. Dretke. 545 U.S. 231, 247 (2005).

Accord Nordlinger

v, Hahn, 505 U.S. 1, 10 (1992) ("who are in all relevant respects

alike").

Also, the Circuit Courts decisions defining "similarly

situated" comparators and relevant aspects that agree with

Nordlinger and Miller-El conflict with the Sixth Circuit.

What

determines "relevant respects," "very similar," or directly

comparable?

Second, on certiorari in Willowbrook the Court did not

fully delve into the retaliatory, ill-will, vindictive action

ruling by the Seventh Circuit.

The Olech Court, and other

Circuits, hold that showing of an animus alone establishes a

equal protection violation and defeats rational basis.

Olech

v. Willowbrook, 160 F3d 386, 387 (CA7 1998), aff'd other grounds

Willowbrook v, Olech, 528 U.S. 562, 565 (2000).

Others are

confused on how to interpret Olech.

"Similarly situated11

In Miller-El, a review of a Equal Protection Batson claim

by this Court, when looking at non-black similarly situated

jurors there were found strong similarities as well as some

differences.

Miller-El, 545 U.S. at 247.

Justice Thomas

dissented, contending that there were no white

similarly situated because because,

II I It

panelists

tsjimilarly situated"

does not mean matching any one of several reasons. . .it means

matching all of them. « II Id. at 545 U.S. at 247 n.6.

added).

(ellipsis

The Court rejected that reasoning, stating that no

case has announced such a per se rule that no comparison is

probative unless the situation of the individuals compared are

identical in all respects and there was no reason to accept

such a rule.

Comparators "are not products of a set of cookie

cutters." Id.

Accord Nordlinger, 505 U.S. at 10.

Such a per se

rulle could leave Batson claims inoperable.

Every other Circuit Court of Appeals agrees that the inquiry

is some form of "alike in all relevant respects." Cf. Davis v.

Coakley, 802 F3d 128, 133 (CA1 2015); Startzell v. City of

Philadelphia, 533 F3d 183, 203 (CA3 2008) (same); Quinn v. Bd. of

County Comm'rs for Queen Anne's Cty., 862 F3d 433, 444 (CA4

2017) (same); Neilson v. D'Angelis, 409 F3d 100, 104 (CA2 2005)

("prima facie identical in all relevant factors"); Griffin Indus.

v, Irvin, 496 F3d 1189, 1204 (CA11 2007) (same); Humphries v.

CBOCS West, Inc • t 474 F3d 387, 404-05 (CA7 2007) ("all relevant

factors"), aff'd CBOCS, West v. Humphries, 553 U.S. 442 (2008);

Lindquist v. City of Pasadena, 669 F3d 225,234 (CA5 2012) (same);

Ariz. Dream Act Coalition v. Brewer, 855 F3d 957, 966 (CA9 2017)

(same); Jennings v. City of Stillwater, 383 F3d 1199, 1213-14

(CA10 2004) (same); Robbins v. Becker, 794 F3d 988, 996 (CA8

2015)(identical or directly comparable in all material respects).

In affirming the Seventh Circuit's "class of one" "similarly

situated" comparison the Court did not search for all respects

of homeowners who wanted to have their homes connected to Willowbrook's water supply,

It was only looked at that others were

demanded a 15-foot easement, not the 33-foot demanded of the

Olechs.

Willowbrook. 528 U.S. at 565.

of 18-feet was enough for a claim.

Id.

The intentional demand

This Court did not

compare lot sizes, if the connection was at different pints on

the lots, or any other respect.

Only that the Olechs claimed

intentional different treatment from others similarly situated

and there was no rational basis.

Id. at 564.

"The burden of establishing a prima facie case of disparate

treatment is not onerous.— Tx. Dep't. of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981).

But, in the wake of Willowbrook lower

courts and commentators have struggled defining the contours t „ >• •

of class-of-one cases, even malice or ill-will must be present in

Jennings, 383 F3d at 1210-11 n.4

addition to arbitrariness.

(collecting cases); Marcelle v. Brown County Corp., 680 F3d 887,

891-93 (en banc 5-5) (same).

Circuits that have defined similarity and relevant respects

agree that there is no "magic formula," but the inquiry is a

flexible one that considers "all relevant factors, the number

of which depends on the context of the case." Humphries, 474

F3d at 405.

In other words, the inquiry simply asks whether

there are sufficient commonalities on the key variables that

would allow a jury to reach an inference of discrimination or

retaliation.

Id.

See also Davis, 802 F3d at 132-33; Neilson,

409 F3d at 105; Lindquist, 669 F3d at 233-34; Jennings, 383 F3d

at 1214; Griffin, 496 F3d at 1203.

Briscoe asks this Court to define similarly situated and

relevant respects; to incorporate the "subjective ill will into

the class of one equal protection, clarifying "Olech claims"

and apply a "burden shifting" type of test to the class of one

equal protection claims.

This will clarify and bring conformity

to the courts on Olech and any equal protection claim when

"similarly situated" is argued.

This is not a new test or burden

of proof that is not already in some formed used by this Court

and or the Circuits on equal protection based claims.

As always, a successful prima facie "class of one" claim

alleges:

(1) Plaintiff has been intentionally treated different

from others similarly situated; and (2) that they is no rational

basis for the difference in treatment.

Willowbrook, at 564.

Definitions:

A comparator is "similarly situated" when they are "alike

in all relevant respects.

Nordlinger, 505 U.S. at 10; Miller-El,

545 U.S. at 247 n.6 (not identical).

The similarly situated

inquiry is a flexible one that considers "all relevant factors,

the number of which depends on the context of the case."

Humphries, 474 F3d at 405; Lindquist, 669 F3d at 234.

This is

a common sense inquiry, not a magic formula, that simply asks

whether there are sufficient commonalities by the preponderance

of key variables that would allow a jury to reach an inference of

discrimination or retaliation.

Humphries, 474 F3d at 405.

See also Neilson, 409 F3d at 105; Davis, 802 F3d at 133.

An individual is "similarly situated" when "a prudent person,

looking objectively at the incidents, would think them roughly

equivalent." Davis, 802 F3d at 133.

Apples can not be compared

to oranges, but an orange and apple has to be on the table

together to be compared.

Relevant factors are case-specific and requires considera

tion of the full variety of objective factors that an objectively

reasonable decisionmaker would have found relevant in making the

challenged decision.

at 1203.

Lindquist, 669 F3d at 234; Griffin, 496 F3d

These relevant factors have to be legitimate, would

apply at the time of the comparison, and are not pretextual.

Burdine, 450 U.S. at 253; Turner v. Safely, 482 U.S. 78, 89

t1987) (“valid, rational connection • • • legitimate governmental

interest put forward to justify it").

It has to be one that

advances the objective of the government's mission or goal.

Nordlinger,505 U.S. at 11;Reed v. Reed, 404 U.S. 71,76-77 (1974).

Rational basis:

An ration basis is a difference in treatment not based on

impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person.

Davis, 802

F3d at 132-33 (cites omit).

The "rational basis" test means that "the varying treatment

of different groups or persons is so unrelated to the achievement

of any combination of legitimate purposes that [the court] can

only conclude that the [government's] actions were irrational."

Kimmel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000) (inner

quotation and cite omit); Nordlinger, 505 U.S. at 10 (classifi

cation rationally further a legitimate state interest); Turner,

482 U.S. at 89-90 (logical connection between asserted goal; and

"the governmental objective must be a legitimate and neutral

one"); Reed, 404 U.S. at 75-77 (denied different treatment on

basis of criteria wholly unrelated to objective).

Once the plaintiff has specifically plead one or more

similar comparators alike in all relevant respects that would

or should apply in the context of the case and then has plead

no rational basis for the-difference in treatment under the

circumstances by direct circumstantial evidence, a prima facie

case is stated,

Willowbrook, 528 U.S. at 565.

A "class of one"

plaintiff may demonstrate that a government action lacks rational

in one of two ways:

wither by "negativing every conceivable

basis which might support" the government action or by demon

strating that the challenged government action was motivated by

ill-will.

Warren v. City of Athens, 411 F3d 697, 711 (CA6 2005);

LeClair v. Saunders, 627 F2d 606, 609-10 (CA2 1980); Olech, 160

F3d at 387.

The burden must then shift to the defendant to articulate

some legitimate, nondiscriminatory reason for the difference

in treatment or other relevant factor that advances the objective

of the government's mission.

McDonnell Douglass Corp. v. Green,

411 U.S. 792, 802-03 (1973).

If the defendant has presented

some legitimate, nondiscriminatory reason or another relevant

respect it has sufficed to discharge its burden of proof at

this stage and to meet plaintiff's prima facie case.

Id.

The inquiry must not end here.

Whether a particular ground for opposing a claim may be

the basis for dismissal for failure to state a claim depends

on whether the allegations in the complaint suffice to establish

that ground, not on the nature of the ground in the abstract.

Jones v. Bock. 549 O.S. 199, 215 (2007).

Just as in pro-se

in forma pauperis cases, a reviewing court must allow liberal

pleading, and an amended complaint, this in additional to an

reply brief before any dismissal under 28 U.S.C, §1915 or Rule

12(b)(6) for lack of similarly situated or rational basis.

Philliphs v. County of Allegheny. 515 F3d 224, 246 (CA3 2008)

remand to amend); Jacobs v. City of Chicage, 215 F3d 758, 765

n.3 (CA7 2003).

The plaintiff must be given a fair opportunity to show

that the defendant's or court's stated reason was pretextual,

not a relevant aspect or some other illegitimate reason.

McDonnell, 411 U.S. at 804-05; Burdine, 450 U.S. at 253.

is why the inquiry must not end above.

That

Jones makes clear that

other allegations or facts in the complaint can nullify that

ground.

That is why the ground cannot be looked at in the

abstract.

Relevant evidence of showing a pretext is disparate treat

ment of similarly situated parties, direct or circumstantial

evidence of impermissible or illegitimate action; or direct or

circumstantial evidence of animus.

Olech, 160 F3d at 387; Davis,

802 F3d at 132-33; Warren, 411 F3d at 711; Bartell v. Aurora

Pub. Schs • 9 263 F3d 1143, 1149 (CA10 2001) (animus); Hilton v.

City of Wheeling, 209 F3d 1005, 1008 (CA7 2000) (government

actions motivated by personal malice unrelated to defendant's

official duties).

Other evidence that may be relevant to any showing of pretext

includes facts as to defendant's prior treatment of plaintiff;

reaction to plaintiff's prior similar legitimate activities;

defendant's failure to engage in any meaningful examinations on

a subject alleged it is concerned about and "how reasonable, or

how improbable, the explanations are;—and by whether the

proffered rational has some basis in accepted" strategy of

objective or goal.

McDonnell, 411 U.S. at 804; Miller-El, 545

U.S. at 246-47.

Outside "[p]roof that the defendant's explanation is

unworthy of credence is simply one form of circumstantial

evidence that is probative of intentional discrimination, and

it may be quite persuasive." Miller-El, 545 U.S. at 241 (cite

omit)

If the plaintiff has plead a pretext, he or she must be

given a full and fair opportuntiy to demonstrate by competent

evidence that the presumptively valid reasons were in fact a

cover up for a discriminatory decision.

at 805.

McDonnell, 411 U.S.

Much more so, i the pro-se, prison inmate context given

the significant limitations on an inmate's rights, to place

the burden of proof on the inmate to show why the actions of

prison officials were arbitrary or capricious, by going further

and adding another weight to an already heavily weighted scale

by requiring an inmate to produce evidence, or every defense,

which he will rarely be in possession, and of which the prison

will almost always possess in the pleading stage is unwarranted.

Ponte, 471 U.S. at 499; Jacobs, 215 F3d at 765 n.3; Giarratano

v. Johnson, 521 F3d 298, 303 (CA4 2008).

Case at bar

In applying the test to the instant case, Briscoe’s equal

protection claim was the Defendants' objective, its goal or

legitimate penological interest of Hurayt's investigation was

to prove if the allegation by Hurayt that someone "set Him up"

by placing a flash drive with child porn on it at his bunk area

and then going to Ms. Long reporting he had it.

Hurayt accused

"Brisco, Dussell and Vic" of doing this scheme.

Defendants'

Foley, Gillece, Weishar, Eppinger, Costello, and Hurayt then

looked at video of Hurayt's bunk and questioned Ms. Long about

the reporting while checking video of her office.

The Sixth Circuit held that Briscoe and Hurayt were not

similarly situated "in all respects, as Briscoe's charge involved

a risk to prison security through an escape plan, whereas

Hurayt's charge involved the possession of a contraband flash

drive, and Briscoe had accused him of merely making a false

report."

Briscoe and Hurayt were inmates at Grafton, housed in the

special housing unit under investigation for an alleged major

misconduct-uncharged, and presenting a claim of being set up

for the alleged violation.

These are the "relevant respects"

that shows similarly situated for both to have a investigation

of a set up.

Briscoe alleged that Defendants Foley, Gillece, Weishar,

Eppinger, and Costello failed to investigate his claim that

Hurayt "set Him up" about a plan to escape in retaliation for

Briscoe reporting that Hurayt was using a flash drive and CD

software at the Media Studio; to help the "friend" get out of

being criminally charged for the usb with "child porn" on it;

charge of false information to law enforcement about escape

and usb; threats by Hurayt to report malfeasance; and being

"duped" about escape exposure,

Distinction by classes of charge

in this context is irrational andv’re levant.

The criteria of inmates under inbestigation for escape

that claim that an someone “set Him up" cannot have the benefit

Of an administrative investigation for the objective to determine

if the inmate was set up by an inmate or staff, while allowing

investigations to any other inmate for the determination if

someone “set Him up" for a "contraband" flash drive is arbitrary

and unreasonable.

Reed, 404 U.S. at 76-77.

The different allegations would not be a relevant factor

by an objectively reasonable governmental decisonmaker in the

context of this case for several reasons.

Griffin, 496 F3d

at 1203; Humphries, 474 F3d at 405; Jennings, 383 F3d at 1214.

First, at the time of the challenged decision no one was

charged with misconduct.

Second, this was a unreasonable

investigation strategy and improbable decision at the time.

Miller-El, 545 U.S. at 247 (cite omit).

Known facts were:

(i) Braille lab was closed for porno on computers; (ii) Hurayt

had lied about sent to work at the One Stop lab and suspected

of having a flash drive; (iii) Briscoe reported Hurayt had usb,

tried to download religious software and removed from the Media

Studio lab; (iv) Briscoe had warned by a "kite" of a impending

second retaliatory attack by Hurayt two days earlier; (v) the

flash drive was traced back to where Hurayt was just transferred

from; (vi) Hurayt's property and ticket included "Church" CD

software; and (vii) Hurayt had already wrote two letters asking

inmates to testify (perjure), that they placed the flash drive

at his bunk, which would be unnecessary if Brisco, Duce and Vic

"set Him up."

Third, Briscoe and two other codefendants were program aides

in each computer lab Hurayt was doing his nefarious conduct, all

four accused by Hurayt knew he had the usb and all four did not

even associate.

Finally, Hurayt only made this allegation after

being found with a flash drive on the same day of a promising

parole hearing and in segregation,

These facts show that the

classification of. planning an escape "could not reasonably be

conceived to be true by the governmental decisionmaker." Kimel,

528 U.S. at 84 (cites omit); Ponte, 471 U.S. at 497 (exploit

disciplinary process for "snitching"); Wolff, 418 U.S. at 562

("retaliation much more than a theoretical possibility");

Nordlinger, 505 U.S. at 11 (relationship of classification to

its goal).

Pretextual

Foley, Gillece, Weishar, Eppinger and Costello's pretextual

allegation of a plan to escape, shoddy investigation and "set up"

by Hurayt would allow a jury to reach an inference of discrimi

nation or retaliation.

The pretextual use of an alleged escape and shoddy investi

gation was sufficient because sufficient other evidence by

letters and e-mails from Hurayt showed Briscoe was set up by

him in retaliation for the reporting of the flash drive and

downloading software, nfarious conduct in the Media Studio.

The

July 11, 2016 kite was evidence that Briscoe was afraid of

another attack that happened two days later and this was stated

to Weishar when asked did he know why he was under investigation.

"Hurayt and that usb stick and the kite I sent," and "Whatever,

it has to do with Hurayt and that usb stick." Humphries, 474 F3d

at 407; Burdine, 450 U.S. at 253 (preponderance of evidence that

reasons were a pretext); McDonnell, 411 U.S. at 804 (defendant's

reaction to plaintiff's legitimate civil rights activities).

Other evidence to show a pretext was Gillece's action on

August 19, 2016 by placing Briscoe and Collins back in RH, the

same day of starting the investigation on who "set Him up" and

they were riding out (being transferred).

The investigation only

happened after Hurayt made several calls to Foley pleading for

help about the flash drive.

When Hurayt thought he would lose,

his "friend" called the prison and starts the ball rolling.

A friendship has nothing to do with the duties of Foley's

position.

Hilton, 209 F3d at 1008.

During the review of video

and the explaining of events in Hurayt's letter, there is never

any meaningful talk about the escape.

246.

Miller-El, 545 U.S. at

This is proof that any explanation is unworthy of credence

and quite persuasive.

Id. at 241.

They called Legal to see

if they will back them.

Animus or ill-will

Briscoe asks this Court to rule that the theory of "subjec

tive ill will," commonly know as animus or ill will, supports a

Equal Protection claim ~and~“the Sixth Circuit 's ruling is in

conflict with the majority Circuit Court of Appeals on a Olech

"class of one" claim.

Under this theory Briscoe argued that he was denied equal

protection during the investigation and hearing by the failure

to investigate his claim of a set up and impartial juror by

a civil conspiracy.

Defendants had a friendship with Hurayt

that provided the animus to charge Briscoe with a illegitimate

charge of escape for the reporting that Hurayt had a flash drive

with child porn.

Then when it was found out that Hurayt was

lying about the flash drive being planted and the escape, they

made sure that a guilty verdict was made by appointing Foley for

a tie break vote.

This was to prevent Briscoe from exposing the

other animuses of being "duped" about the escape and other

malfeasances.

The foundation for the "vindictive" equal protection claim

is said to have its roots in Olech v. Willowbrook after this

Court's per curiam opinion affirming the Seventh Circuit's ruling.

The Seventh Circuit made clear that this remedy was provided by

the Equal Protection Clause long before where a "powerful public

official picked on a person out of sheer vindictiveness." It can

be invoked by a person who can prove that an "action taken by

the state, whether in the form of prosecution or otherwise, was

a spiteful effort to 'get' him for reasons wholly unrelated to

any legitimate state objective." Olech, 160 F3d at 387 (cites

omit).

This Court did not reach this alternative theory of

"subjective ill will." Willowbrook, 528 U.S. at 565.

To state a prima facie case under this claim, similarly

situated proof can be relaxed.

Only if the plaintiff presents

evidence of "personal malice and 'bad faith' retaliation."

Cordi-Allen v. Conlon, 494 F3d 245, 251 (CA1 2007); Hu v. City of

New York, 927 F3d 81, 90-92 (CA2 2019) (malice motivated),

See

also Squaw Valley Dev, Co. v. Goldberg, 375 F3d 936, 945, 947

(CA9 2004) (finding no similarly situated comparator, but under

class of one ill will found); Geinosky v. City of Chicago, 675

F3d 743, 748 (CA7 2012) (no comparator with 28 bogus tickets).

Briscoe presented a letter by Hurayt that details after

pleading for help to out of the usb charge how his "friend"

Foley comes to the rescue.

If the reasons not to investigate

Briscoe's claim of a set up was because of reporting Foley's

"friend" had a flash drive, or they thought Briscoe planted the

usb this is a personal motivation not related to their duties.

Failure to investigate a complaint or provide police protection

because of a "friendship" states a class of one claim.

Marcelle,

680 F3d at 889; Hilton, 209 F3d at 1007; Shipp v. McMahon, 234

F3d 907, 916-17 (CA5 2000); Demuria v. Hawkes, 328 F3d 704,

707 (CA2 2003).

Defendants discipline on a plaintiff based on

a belief engaged in unlawful action makes the subjective belief

unwarranted and irrational treatment.

Cobb v. Pozzi, 363 F3d 89,

110 (CA2 2003).

Then on September 15, 2016 e-mails from Hurayt to V7eishar

are discovered that evidence a conspiracy to cover up being

"duped" about the escape and malfeasance.

A desire to find a

scapegoat in order to avoid adverse publicity and the threat of

a lawsuit is an actionable reason unrelated to duties.

v. City of Chicago, 686 F2d 511, 524 (CA7 1982).

Ciechon

Knowing that

Briscoe was grieving and wanting Hurayt charged, he was the

scapegoat by continuing t charge the "bogus" escape,

The key

evidence is the alleged facts provided by Hurayt and confirmed

by other corroborating evidence of no investigation of Briscoe's

set up claim; bed moves; the kites; no talk of escape in Hurayt*s

letter; and when the RIB hearing was tied, Eppinger intentionally

appointed Foley for the tie break vote.

Geinosky, 675 F3d at

748-49 (bogus charges by several officers in same unit).

No matter what burden of pleading Briscoe was required to

meet, the Sixth Circuit's ruling was in conflict with this

Court's and other Circuit's class of one decisions in Willowbrook

v. Olech and Nordlinger that similarly situated means "in all

relevant respects alike." If the investigation started on August

19, 2016 for Hurayt was not to see who "set Him up," but for the

charge of a flash drive, the escape charge could then be a

legitimate, security interest relevant to the government's

decision.

Still, a reasonable decisionmaker could exclude that

factor because Briscoe argued that it was a retaliatory false

charge for reporting Hurayt's nefarious activity and both were

similarly major misconduct.

The escape charge was pretextual to help a "friend." Both

are not a "legitimate penological interests." Turner, 482 U.S.

at 89; Kimel, 528 U.S. at'-84 (facts based on-untrue).

In the alternative, Briscoe asks that a Olech class of

one "subjective ill will" states a claim for Equal Protection,

that an animus can relax similarly situated proof and can over-

come the rational basis; and the facts presented in the complaint

if proved by competent evidence presents a triable jury issue.

Olech, 160 F3d at 387-88 (cites omit).

Can there ever be a rational basis to a vindictive action?

An action motivated by ill will for the exercise of a First

Amendment right is "irrational and wholly arbitrary." Olech, 160

Such retaliation inhibits the exercise of the

F3d at 387-88.

protected right, an "unconstitutional condition" demanded for

receipt of a government provided benefit.

Crawford-El v. Britton,

523 U.S. 574, 588 n.10 (1998).

Cruel and Unusual Punishment

This Court must review the Eighth Amendment claim by the

Petitioner in the Sixth Circuit because the ruling is in conflict

with decisions in Whitley v. Albers; Hudson v, McMillian; and

Hope v. Pelzer.

The Sixth Circuit's ruling allows a prison to

exact intentional wanton pain and injury that is challenged in

"bad faith".

The denial allows a prison security measure taken

"totally without penological justification" and in "bad faith"

unchallengable.

These matters are given difference, but it will

not insulate from review actions taken in "bad faith."

Briscoe raised a claim that the contorting of his arms and

wrists in "black box" restraints that caused pain and injuries

were excessive force in "bad faith"—and- done "totally without

penological justification" when State actors Foley, Gillece,

Weishar, Eppinger, Costello and Hurayt used a State policy and

practice of a confidential informant and a sham disciplinary

hearing to facilitate a false escape plot in retaliation for

reporting misconduct.

This contorting lead to surgery to repair

the injuries.

Briscoe argued that Hurayt's false retaliatory escape story

started the actions in motion and when Defendants Foley, Gillece,

Weishar, Eppinger and Costello was told in e-mails from Hurayt

that the reason he told the lie was because Briscoe, Duce and Vic

went to Ms. Long and said Hurayt had a flash drive, these same

people conspired to convict Briscoe of a knowingly false charge

that lead to the transfer and punitive "black box" restraints.

The acts were malicious and intentional by Eppinger appointing

Foley to the hearing when a split 1-1 verdict was cast.

If not

for the guilty verdict, Briscoe would not have been subject to

"black box" restraints.

Therefore, because injuries and pain

would not have happened without these actions, Briscoe was

subjected to the "unnecessary and wanton inflictions of pain"

that were "totally without penological justification".

As a preliminary matter, Hurayt is a state actor by the

exercise of some right or privilege created by the State or

by a rule of conduct imposed by the State or by a person for

whom the State is responsible, "is a state official, because

he has acted together with or has obtained significant aid from

state officials, or because his conduct is otherwise chargeable

to the State." Lugar v. Edmondson Oil Co • f 457 U.S. 922, 937

(1982); Mishiyama v. Dickson Cty

814 F2d 277, 279-81 (CA6 1987)

(en banc).

II I

Private persons, jointly engaged with state

officials in prohibited action, are acting "under color" of

law[.] • it Lugar, 457 U.S. at 941 (cites omit) (insert added).

The Sixth Circuit held:

In this case, Briscoe's complaint provides the

very penological reasons that the officers

detained him-because a fellow inmate said that

Briscoe was planning to escape and because the

prison needed to transport him to another

prison. Of course, Briscoe alleged that the

inmate lied about the escape plan. But the

fact that inmate may have lied does not trans

late the handcuffing or higher security

decision into cruel and unusual punishment.

Without more, Briscoe has not stated an

Eighth Amendment claim.

Briscoe v. Mohr, et al • r Case No. 19-3306, pg. 5 (slip opinion).

But, immediately after that ruled on the retaliation claim

that the allegations of defendants bringing a false charge of

escape for reporting Hurayt had a flash drive and making false

accusations against him stated a claim.

This action was taken

because of the friendship; to prevent Briscoe from testifying

about Hurayt's conduct and their malfeasance; to save face from

being "duped" about the escape; and to prevent Hurayt's threats

to expose malfeasance.

e-mails by Hurayt.

This could be proved by letters and

Briscoe v. Mohr, et al • 9 Case No 19-3306,

pg. 5 (slip opinion).

Bad faith

An Eighth Amendment claim can be made although the punish

ment is "not physically barbarous, 'involve the unnecessary and

wanton infliction of pain. • ii The unnecessary and wanton inflic-

tions of pain are those "totally without penological justifi

cation’." Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

Conduct

not for the purposes of punishment must involve more than

ordinary lack of due care, "it is obduracy and wantoness, not

inadvertence or error in good faith, that characterize conduct

prohibited." Whitley v. Albers, 475 U.S. 312, 319 (1986).

If force is applied it has to be in an effort to maintain or

restore discipline or violative if done maliciously and sadisti

cally for the very purpose of causing harm.

Whitley, 475 U.S.

at 320; Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Hope v,

Pelzer, 536 U.S. 730, 745 (2002) ("rail" improper punishment

when done of necessity, but as punishment for prior conduct).

Cruel and unusual draws "its meaning from the evolving

standards of decency" that an inmate must rely on prison

authorities to treat needs or needs will not be met.

U.S. at 347; Deshaney, 489 U.S. at 200.

Rhodes, 452

"When prison officials

maliciously and sadistically use force to cause harm,contemporary

standards of decency always are violated." Hudson, 503 U.S. at 9.

If any safety concern had long since abated or in a clear

lack of an emergency situation prison officials knowingly

subjects an inmate to substantial risk of physical harm, to

unnecessary pain caused by the handcuffs and restricted position

of confinement for a long period or created a risk of particular

discomfort, this punitive treatment amounts to gratuitous

infliction of "wanton and unnecessary" pain.

Hope, 536 U.S. at

738; Austin v. Wilkinson, 189 FS2d 719, 725 (ND Ohio 2002)

(uncomfortable "black box" that contorted wrists).

Most Circuits have held the right not to be handcuffed in an

objectively unreasonable manner.

This is a clearly established

right t be free from excessive force, including 'excessively

forceful handcuffing.1

Kostrzewa v. City of Troy, 247 F3d 633, 641 (CA6 2001 ); Stepnes

v. Ritschel, 663 F3d 952, 961 (CA6 2011).

Ironically, the Sixth

Circuit even supports this view on transporting.

Morrison v. Bd.

of Trs, of Green Twp., 583 F3d 394, 403 (CA6 2009).

When prison officials stand accused of using excessive

force the core judicial inquiry is whether force was applied in

a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.

Hudson,503 U.S. at

6-7, citing Whitley, 475 U.S. at 320; Davidson v. Flynn, 32 F3d

27, 30 (CA2 1994).

Even though prisons should be accorded wide-

ranging deference in discipline and security, that deference

"does not insulate from review actions taken in bad faith and for

no legitimate purpose." Whitley, 475 U.S. at 321-22 (cites omit)

(emphasis added); Hudson, 503 U.S. at 6; Hope, 536 U.S. at 738.

((clear lack of emergency unreasonable for restricted restraints).

Where there is evidence that appears to contradict the

claims of good faith court may not simply credit deference.

McCottrell v. White, 933 F3d 651, 671 (CA7 2019).

The Second Circuit Court of Appeals held that an excessive

force claim was stated, and reversed the dismissal of the

district court's adoption of the magistrate's recommendation.

The magistrate judge erred in deeming the complaint limited to

whether there was need for mechanical restraints.

The claim is

not based on the use of handcuffs, but on their deliberate and

improperly motivated application so tightly as to injure.

Davidson v. Flynn, 32 F3d at 30.

The defendants argued that

because plaintiff was an escape risk, tight mechanical restraints

would have been used absence of improper motive.

Id. at 30.

The

material questions of fact were plaintiff’s claims the restraints

placed on him were in excess of what was necessary under the

circumstances, beyond what was normally used when transporting;

and whether the "too tight handcuffing as to cause severe pain

and permanent injury was the officers use of excessive force in

retaliation for litigiousness." Id. at 30.

These actions were

deemed bad faith.

There are other Circuits that have ruled that some kind of

unreasonable manner of handcuffing when the defendant has stated

a legitimate reason was bad faith include the First, Third,

Seventh and Ninth.

Staples v. Gerry, 923 F3d 7, 13-14 (CA1

2019); Kopec v. Tate, 361 F3d 772, 777 (CA3 2004); Robins v.

Meecham, 60 F3d 1436, 1440 (CA9 1995) (an intent to punish is

enough to establish a cause of action).

A prisoner states a claim under the Eighth Amendment when

he plausibly alleges that conduct in question "was motivated by a

desire to harass or humiliate rather than by a legitimate justi

fication, such as need for order and security." King v. McCarty,

781 F3d 889, 897 (CA7 2015).

Briscoe states a Eighth Amendment claim on Foley, Gillece,

Weishar, Eppinger, Costello, Mohr and Hurayt, they knew that

there was a lack of an emergency situation, but treated Briscoe

wantonly by an improper punishment for the prior conduct of

reporting Hurayt's misconduct, a protected action.

totally without penological justification.

This was

Hope, 536 U.S. at

Id. at

745.

This was accomplished by a sham misconduct hearing.

744.

The sham hearing lead to "black box" handcuffing, which are

a specially designed metal bar designated for shackling that

are only used for transport of maximum level inmates, that

contort the wrist in a awkward restraint.

Id. at 742.

Defen-

dants knew that the charge and finding of guilt to escape would

result in both a non-discretionary transfer to maximum and the

"black box" restraints.

Austin v. Wilkinson, 189 FS2d at 725

(uncomfortable "black box" that contorts wrists).

Briscoe has plead all factors to show that the force applied

was unreasonable.

There was no need of force by "black box"

since Defendants knew the escape charge was in retaliation.

Briscoe needed surgery for nerve damage-golfer's elbow,

Defen-

dants knew that maximum level was guaranteed from escape charge,

"black box" would be used, and causes injury,

Defendants could

have transferred Briscoe under normal conditions by regular

"lateral" transfer.

Whitley, 475 U.S. at 321; Hudson, 503 U.S.

at 7.

Failure to protect/intervene

The acts of the Defendants above show that they failed

to protect Briscoe from Hurayt and the conspiracy from each

other.

An inmate has a right under the Eighth Amendment to

be protect from attack or harm.

825 (1994).

Farmer v. Brennan, 511 U.S.

One does not have to await the consummation of

threaten injury to obtain preventive relief, only failing to act

despite knowledge of a risk of harm.

Id. at 842,845.

Prison staff and inmates who conspire to orchestrate an

attack in retaliation violate the Eighth Amendment.

Jones, 293 F3d 839, 845 (CA5 2002).

Cantu v.

Prison staff's duty to

protect inmates from attack/harm from an inmate applies equally

to take reasonable measures to guarantee the safety of the

inmate from prison staff,

A duty to intervene when there is

opportunity to do so must be made.

the blind eye are liable.

Staff that conspire or turn

Curry v. Scott, 249 F3d 493, 506

n.5 (CA6 2001); Smith v. Mensinger, 293 F3d 641, 650-52 (CA3

2002).

The Court should reverse and remand these claims back to

the district by ruling that each claim stated a claim for relief

under the Constitutions First, Eighth and Fourteenth Amendments.

Briscoe has presented issues of significant constitutional

and national importance as reason why this petition should be

granted.

It is so prayed.

Conclusion

The Petition for a Writ of Certiorari should be granted.

Res pi

■iJlver

ToCI

'y submitted,

S. Brisco.e', Jr. #A368171

2001 E. Central Avenue

Toledo, Ohio 43608

Petitoner, pro-se

Date:

28 U.S.C. § 1746 Declaration

I declare or certify, verify, state under penalty of perjury

that the foregoing is true and correct.

Executed on

The foregoing Writ of Certiorari was placed in the prison mail

for forwarding to the United States Supreme Court via firstclass prepaid mail.

368171

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.