Petition for Writ of Certiorari — Bodhisattva Skandha, Petitioner v. William Bates

NO.

2019-P-0465

FAR-27463

IN THE

SUPREME COURT OF THE UNITED STATES

Bodhisattva Skandha

— PETITIONER

(Your Name)

VS.

Massachusetts Appeals Court

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORAFfTTU

FILED

SEP 1 5 2020

Massachusetts Appeals Court

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

PETITION FOR WRIT OF CERTIORARI

Bodhisattva Skandha

(Your Name)

MCI-Norfolk Box 43,

(Address)

Norfolk, MA 02056

(City, State, Zip Code)

None

(Phone Number)

QUESTION(S) PRESENTED

#1 :

Whether The Trial Court Abused Its Discretion

By Dismissing The Case?

• PP- ft-m

#2:

Whether The Defendant Denied The Plaintiff The

Right to Practice Pure Land Buddhism?

PP • 11-16

#3:

Whether The Appearance of Joan T. Kennedy

was Legal?

pp. 1 fi_1 ft

#4:

Whether The Massachusetts appeals Court Can

Overrule The United States Supreme Court?

pp. 1R-20

LIST OF PARTIES

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

[ ^ 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:

1.

Massachusetts Appeals Court - Respondent

2.

Bodhisattva Skandha, Plaintiff/Petitioner

3.

William Bates, Food Services Director

Defendant

TABLE OF AUTHORITIES

Citation:

Paae No:

United States Supreme Court

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

10

Board of Repents v. Roth, 408 U.S. 564 (1872)

10

Burwell v. Hobby Lobby Stores

Inc.. 134 S. Ct. 2751 (2014)

14

Erickson v. Pardus, 551 U.S. 89 (2007)

10

Holt v. Hobbs, 135 S.Ct. 853 (2015)

13

Mims v. Arrow Fin. Services, LLC, 565 U.S. 368 (2012)

20

Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139 (2010)15

Morton v. Mancari, 417 U.S. 535 (1993)

18

Shelby County v. Holder, 570 U.S. 529 (2013)

20

State Oil Co. v. Khan, 522 U.S. 3 (1997)

19

Thomas Review Bd. of Indiana

Emp.

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Page No:

Citation:

Massachusetts

Boston v. Keane Corp • / 406 Mass. 301 (1989)

10

Com • 9 v. Kozlowsky, 238 Mass. 379 (1921)

17

Com • t v. Masskow, 362 Mass. 662 (1972)

19

Ellis v. Dept, of Indus Acc • 9 463 Mass. 541 (2012)

18

Gabbison v. King, 414 Mass. 685 (1993)

8

Galiastro v. Mortgage Electronic

Reg. Sys • 9 467 Mass. 160 (2014)

9

Hanlon v. Rollins, 286 Mass. 444 (1934)

17

Hashimi v. Kalil, 388 Mass. 607 (1983)

18

IA Auto Inc. v. Dir. of the Office of

Campaign and Political Finance, 480 Mass. 423 (2018)

19

Iannacchino v. Ford Motor Co • 9 451 Mass. 623 (2008)

9

Magazu v. Dept, of Children

and Families, 473 Mass. 430 (2015)

15

Merriam v.

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finhmn.

77? Mass.

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Citation:

Page No:

Trapp v. Roden, 473 Mass. 210 (2015)

13

Wilmington v. Dept, of Public Util • / 340 Mass. 432 (1960)

Other

Article II, Declaration Of Rights

16

Article XXX, Declaration Of Rights,

18

M.G.L. c. 12 S3

17

M.G.L. c. 127 §88

12

Mass.R.Civ.P. 8(a)(1)

10

Mass.R.Civ.P. 12(b)(6)

10

Superior Court Rule 3:Obiections

16

Buddhist Pure Land The Teaching of Buddha,

Duties of the Brotherhood mqkm

11

Note?

Pri snnprs ar^ not allowed

rpniilahions. or nasplaw.

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statutes,

17

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4-7

REASONS FOR GRANTING THE WRIT

8-20

CONCLUSION

20

INDEX TO APPENDICES

APPENDIX A

Skandha v. Bates, 97 Mass.App.Ct. 1113 (2020

APPENDIX B

Skandha v. Bates 485 Mass. 1105 (2020)

APPENDIX C

Skandha v. Bates, No • e 1582cv01141

APPENDIX D

Table of Authorities in skandha v. Bates

APPENDIX E

APPENDIX F

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

[ ] For cases from federal courts:

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

the petition and is

to

[ ] reported at

; or,

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

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

[ ] reported at

; or,

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

[ ] is unpublished.

[x] For cases from state courts:

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

Appendix j^»L_ to the petition and is

54 reported at 97 Mass.App.Ct. 1113 (2020)

; or,

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

[ ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

1.

JURISDICTION

[ ] For cases from federal courts:

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

was______________________

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

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

Appeals on the following date: ____________

, and a copy of the

order denying rehearing appears at Appendix

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

to and including______

(date) on

(date)

in Application No. __ A

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

[2q For cases from state courts:

The date on which the highest state court decided my case was 7/27/2020

A copy of that decision appears at Appendix J1b'TJ_.

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

______________________, and a copy of the order denying rehearing

appears at Appendix

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

to and including____

(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

Article II, Massachusetts Constitution

Article XXX, Massachusetts Constitution

M.G.L. c. 12 §3

M.G.L. c. 127 §88

Mass.R.Civ.P. 8(a)(1)

Mass.R.Civ.P. 12(b)(6)

Mass.R.Civ.P. 56(f)

Superior Court Rule 3

Buddhist Pure Land The Teaching of Buddha,

Duties Of The Brotherhood (1996)

-3-

-=_• \

STATEMENT OF THE CASE

The petitioner is a prisoner at the Massachusetts

Correctional Institution, Norfolk, who has worshipped

Pure Land Buddhism since 2005, after converting from

Catholicism.

The petitioner friled a Complaint For Declaratory

Judgment in July 2015. [Appendix Three (App.fcJ) 1-6]

In the complaint, the plaintiff alleged that for

3 years he was issued personal containers (PC) juices

such as Orange Juice, Apple Juice, and Prune Juice which

are 100% chemical-free and are uncontaminated extractions

from the specific fruits on the labels. [App.c~] pp.9',]10]

The petitioner objected to the appearance of Attorney

Joan T. Kennedy because she is not an Assistant Attorney

General. [ App. fc] pp. 11 , #l 9 ]

On March 3, 2016, the defendant, William Bates,

through- Attorney Joan T. Kennedy, filed a Motion To

Dismiss. [App. IV-—1

cl 11, #22] On March 4, 2016, the

plaintiff's Motion For A Pl/TRO was denied by the Court,

Kelly, J.,_[App. .c~ p 11 #22.5}

-4-

On April 1, 2016, the plaintiff filed an Opposition

to the defendant's motion to dismiss. [App. C/ 12, #28]

On June 1, 2016, the plaintiff filed a second motion

for a Pl/TRO to curb the defendant's serving contaminated

drinks. [App.

Q 12, #32]

On June 15, 2016, the renewed motion for a Pl/TRO

was denied by the Court, Inge, J. [Id.]

On July 27, 2016, the plaintiff filed a Notice Of

Appeal on the denial of the Pl/TRO. [App. c, P- 13 #35]

jrhe record was assembled for the interlocutory appeal,

opened by the Appeals Court. [App. c i, p. 13 #35.3]

On July 14, 2017 the Rescript Came from the Appeals

Court (on the interlocutory appeal), judgment affirmed.

[App.

b P- I4/ #40]

On March 12, 2018, the Court, Davis, J., ALLOWED

the defendant's motionto dismiss. [App<^

, p. 14, #41.2]

On April 5, 2018, the plaintiff filed a Notice Of

Appeal on the ALLOWED motion to dismiss. [App. c / P- 14,

#45]

-5-

The record was assembled and the plaintiff was

properly before the Appeals Court. [App. c

p. 15]

The petitioner/plaintiff received PC fruit juices

for 33 months, issued by the defendant. [App. c

,p 2 #4]

In February 2013, the defendant, without authorization

fron the Department of Correction's Religious Services

review Committee, or the Central Office Dietician, stopped

issuing the PC juices with no prior notice of the change.

[App. C' p. 2 M5,6]

The Religious Vegan Menu was created by the Depart­

ment of Correction Central Office Dietician, at the behest

of the Religious Services Review Committee in 2010.

See,

Religious Vegan Menu enclosed as App.c.V pp. 15-20]

The tenets of the plaintiff's Pure Land Buddhism

forbids him from eating any food made from a living being,

or food contaminated by a living being. [App. c. p. 3, §7]

To practice his religion freely, the authorities

who administer the prison are mandated to not offend

the plaintiff's religious beliefs. [App.c., p. 3, #8]

-6-

The Department of Correction, through Attorney

Richard McFarland, agreed to not send the plaintiff

unsealed (in an open container) hot cereal. [App. c..

p. 3, #9]

Without prior notice the defendant issued the

plaintiff Good Solutions Drink Mix, which is offensive

to the plaintiff as a practicing Pure Land Buddhist

because it containes certain chemicals. [App.p,

p. 3,

##10-18]

There were no chemicals in the PC Juices.

According to the plaintiff's personal relgious beliefs,

the Good Solutions is harmful to him as would be a

hamburger. [App. c.. p. 5, ##19-21]

The plaintiff requested as relief for the Court

to issue a Declaratory Judgment that the defendant's

issue of Good Solutions drink mix infringes upon the

plaintiff's sincerely held religious beliefs in the

free exercise of the Pure Land Buddhist Religion.

[App.

p. 5, ##5-6]

-7-

REASONS FOR GRANTING THE PETITION

Issue #1:

Whether the trial court abused its discretion

by dismissing the case?

The petitioner (hereinafter "plaintiff"), pursuant

to Superior Court Rule 9A(c)(3), requested a hearing.

[App. C, p. 12, #30]

No hearing was held.

No discovery

was allowed. [App. C., p. 12, ##31, 31.1]

The Appeals Court ruled, procedurally, that

the plaintiff could not file a second Pl/TRO. Skandha

v. Bates, 91 Mass. App. Ct. 1127 (2017)

According to Massachusetts law, the appellate

court may affirm a judgment on the motion to dismiss

on "any ground apparent on the record that supports

the result reached in the trial court."

King, 414 Mass. 685, 686 (1993)

Gabbidon v.

Conversely, this

court may reverse the judgment on any ground that

supports the plaintiff's claims.

The court will review the allowance of the motion

to dismiss..de novo. Merriam v. Demoulas Super Mkts.,

464 Mass. 721, 726 (2013)

-8-

"[W]e accept as true the facts alleged

in the plaintiff's complaint as well

as any favorable inferences that can

reasonably be drawn from them."

Galiastro v. Mortgage Electronic Reg. Sys.,

467 Mass. 160, 164 (2014)

In order to survive the defendant's motion to

dismiss, a complaint must include factual allegations

sufficient to raise a right to relief above the specu­

lative level. Iannacchino v. Ford Motor Co., 451 Mass.

623, 636 (2008)

Here, the complaint [App. C, pp. 1-6], only fails

if it appears beyond doubt the plaintiff can prove no

set of facts which would entitle him to relief.

See,

Nader v. Cintron, 372 Mass. 96, 98 (1977)

Also, there were many references to matters

outside the pleadings, where the court abused its

discretion for not treating the defendant's motion

as a Rule 56 motion.

The defendant is not authorized to change the

plaintiff's official Religious Vegan Menu, issued by

the Religious Services Review Committee via the Central

-9-

Office of the Department of Correction's Dietician.

The defendant would have had to give notice and hearing

to both the plaintiff and the Committee. Board of

Regents v. Roth, 408 U.S. 564, 570 (1972)

The defendant bears the burden of affirmatively

showing there is no triable issue of fact, or that

there is no controversy to be settled in a declaratory

judgment. Boston v. Keane Corp., 406 Mass. 301

(1989)

The plaintiff afforded the defendant fair notice

of what the claims are, and the grounds upon which they

rest. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

(2007)

Mass.R.Civ.P. 8(a)(1)

In Bell Atlantic, the court stated that:

"...asking for plausible grounds to

infer an agreement does not impose a

probability requirement at the pleading

stage: it simply calls for enough fact

to require a reasonable expectation that

discovery will reveal evidence of an

illegal agreement."

550 U.S. at 556. See, Mass.R.Civ.P. 56(f)

In allowing the defendant's motion to dismiss

under Rule 12(b)(6) was an abuse of discretion. See,

Erickson v. Pardus, 551 U.S. 89, 94 (2007)

-1 0-

Issue #2:

Whether the defendant denied the plaintiff

the right to practice Pure Land Buddhism freely?

"...at the same time, they do not neglect

to take care of their bodies, not because

they wish to enjoy the physical pleasure of

the body, but because the body is temporarily

necessary for the attainment of wisdom and

for their mission of explaining the path to

others.

If they do not take good care of their

bodies they cannot live long, if they do

not live long, they can not practice the

teaching personally or transmit it to

others...if a man seeks to attain enlighten­

ment he must take care of his body."

Buddhist Pure Land The Teaching of Buddha / r

Duties Of The Brotherhood (Kosaido Printing Co. Ltd.

1 966)

The defendant did not dispute the plaintiff's

Pure Land Vegan Menu (since May 2010) nor does he

dispute that the Good Solutions Drink Mix, with all

its chemicals, is offensive to the plaintiff in the

practice of his religious beliefs,

The defendant

simply claims that it is "safe for human consumption."

To the plaintiff, this is not an incidental

burden.

The plaintiff either drinks Good Solutions

Drink Mix or goes without.

There is no alternative.

-11-

No alternative was offered.

No legitimate government

interest to discontinue the plaintiff's PC Juices was

put forth by the defendant. Turner v. Safley, 482

U.S. 78, 90 (1987)

The defendant may be an expert in running the

Food Services Department of the Norfolk Prison.

That

expertise does not justify the abrogation of the re­

sponsibility of the defendant put forth by the Massa­

chusetts Legislature in M.G.L. c. 127 §88.

Based on

the statute, the defendant should not be awarded any

deference in the arbitrary and capricious forcing of

Good Solutions Drink Mix, with no showing the defendant

lacks other means to respect plaintiff's religious

tenets in practicing Pure Land Buddhism.

Here, there are questions of fact under the

First Amendment which remain unanswered.

All the

procedural requirements placed on the plaintiff by

the Religious Services Review Committee, and the

Department of Correction have been fulfilled.

The plaintiff submitted his religious vegan meal

requests to the Religious Services Review Committee

who made a formal recommendation to the Commissioner

-1 2-

of Correction.

The Commissioner approved the

Religious Vegan Menu. [App. C, pp. 15-20]

The defendant, by issuing Good Solutions Drink

Mix as a substitute for the 100% fruit juice, which

the plaintiff receives every morning for breakfast,

has put substantial pressure on the plaintiff to

modify his behavior, which burdens his religious

beliefs and practices to not contaminate his body,

Thomas v. Review Bd. of Indiana Emp. Sec. Div.,

450 U.S. 707 (1981), or coerce the plaintiff into

acting contrary to his religious beliefs. Lyng v.

Northwest Indian Cemetary Protective Ass'n, 485 U.S.

439, 450 (1988)

When assessing whether a burden on a particular

religious exercise is substantial, the Court does

not consider whether a claimant is able to engage

in alternative forms of religious exercise; its focus

remains on whether the burden on the specific exer­

cise at issue is substantial. Trapp v. Roden, 473

Mass. 210, 2015) (quoting) Holt v. Hobbs, 135 S. Ct.

853, 862 (2015)

That the Good Solutions Drink Mix is found "safe"

by other religions, or government entities, is not

-1 3-

the pivotal factor in this Complaint.

Restraurants all over Massachusetts serve a pork

steak.

The pork steak would not be "safe" to a Jewish

person or a Muslim person.

The least restrictive means would be to serve

the PC juice which is served at breakfast, on the

lunch and supper meals as well. Burwell v. Hobby

Lobby Stores, Inc 1/ 134 S. Ct. 2751, 2780 (2014)

The burden was always on the defendant to demon­

strate a legitimate government interest in serving

demonstrably different kinds of beverages between

breakfast, lunch, and supper, and apply the least

restrictive means for the plaintiff. Lovelace v. Lee,

472 F.3d 174, 192 (4th Cir. 2006)

There is no basis in this case for a court to

declare the least restrictive means test satisfied

without any substantive explnations from prison officials.

Lovelace, 472 F.3d at 192.

Even though the plaintiff was denied a Pl/TRO

by the Superior Court, he should have received a "perma­

nent injunction" from the Respondent, because the

-1 4-

plaintiff has complied with the four-factor test:

1)

he has suffered an irreparable harm;

2)

remedies available at law, including monetary

damages are inadequate to compensate for his

injury;

3)

considering the balance of hardships between

the plaintiff and the defendant, a remedy in

equity is warranted;

4)

the public interest would not be disserved by

a permanent injunction.

Monsanto Co. v. Geerston Seed Farms, 561 U.S.

139, 156-157 (2010)

"[C]ongress shall make no law respecting

an establishment of religion, or prohibit­

ing the free exercise thereof..."

"Only those interests of the highest

order and those not otherwise served

can overbalance legitimate claims to

the free exercise of religion."

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)

[cited in] Magazu v. Dept, of Children and Families,

473 Mass. 430, 443 (2015)

Because the defendant Food Services Director

provided the PC Juices for 33 months consecutively,

-1 5-

it clearly must be assumed that it did not unduly

burden the defendant to provide them. Warren v.

Peterson, U.S. Dist. LEXIS 76453 (E.D. IL 2008);

[citing] McEachin v. McGuinnis, 357 F.3d 197, 201202 (2d Cir. 2004)

"And no subject shall be hurt, molested,

or restrained in his person, liberty, or

estate for worshipping God in the manner

and season most agreeable to the dictates

of his own conscience; or for his religious

profession or sentiments; provided he doth

not disturb the public peace, or obstruct

others in their religious worship."

Society of Jesus v. Boston Landmarks Commission,

409 Mass. 38, 41 (1990)

Article II, Massachusetts

Declaration Of Rights

Issue §3:

Whether the appearance of Attorney

Joan T. Kennedy was Legal?

The plaintiff objected to the appearance of Joan

T. Kennedy to represent the defendant, as she is not

an Assistant Attorney General. Superior Court Rule

3: Objections [App. C, 11]

If this Court chooses to apply the law to the

facts, the Attorney General shall appear for the

Commonwealth and for State departments, officers

-1 6-

and commissions in all suits and other civil pro­

ceedings in which the Commonwealth is a party or

interested. Wilmington v. Dept, of Public Utilities,

340 Mass. 432, 438 (1 96^ Secretary of Administration

& Finance v. Attorney General, 367 Mass. 154, 159

(1974); Commonwealth v. Kozlowsky, 238 Mass. 379, 389

(1921)(must get approval by the Governor to add a

Special Assistant Attorney General (SAAG) to the case)

Mass.G.L. c. 12 §3:

"The Attorney General shall appear |orJ the

Commonwealth and for state departments, officers and

commissions in all suits and other civil proceedings

in which the Commonwealth is a party or interested."

The general and familiar rule is that a statute

must be interpreted according to the intent of the

Legislature, ascertained from all the words construed

by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment,

the mischief or imperfection to be remedied, and the

main object to be accomplished, to the end that the

purpose of its framers may be effectuated. Hanlon v.

Rollins, 286 Mass. 444, 447 (1934)

-1 7-

The statute, G.L. c. 12 §3, is specific, Morton

v. Mancari, 417 U.S. 535, 550-551

(1993), has mandatory

language, Hashimi v. Kalil, 388 Mass. 607, 609 (1983),

and any Executive or Judicial Branches of Government

which would abrogate the statute will violate the

Separation Of Powers Clause of Article XXX of the

Massachusetts Declaration Of Rights. Opinion of the

Justices, 365 Mass. 639, 640 (1974)

It is certain the Legislature had the power to

enact the statute. Pielech v. Massasoit Greyhound, Inc.,

441 Mass. 188, 193 (2004)

If the Executive Branch of Government is troubled

by the force of the statute, G.L. c. 12 §3, it can

always petition the Legislature to change the law, as

the Legislature did not allocate its power to the State

Agency known as the Department of Correction, and its

Attorney, Joan T. Kennedy. Ellis v. Department of

Industrial Accidents, 463 Mass. 541, 549-550 (2012)

Issue #4:

Whether the Massachusetts Appeals Court Can

Overrule The United States Supreme ’Court?

In his appeal, the plaintiff cited Federal Law

violations as delineated by the Federal Courts and

-1 8-

The United States Supreme Court.

Courts in Massa-

chusets, according to the Supreme Judicial Court, are

bound by those decisions.

Commonwealth v. Masskow,

362 Mass. 662, 667 (1972):

"[W]e are of course bound by

decisions of the Supreme Court

on questions of Federal Law."

The plaintiff cited ten (10) United States Supreme

Court cases in his appeal to the Respondent. [App. D,

PP. i-14 ]

The Respondent, disrespectful of the Supreme

Court's decisions on the issues on their collective

Judicial desks, never ruled on the Federal Law which

the plaintiff presented.

The Respondent is bound by the Supreme Court

decisions:

1A Auto, Inc, v. Director of the Office of

Campaign and Political Finance, 480 Mass. 423, 428

(2018);

State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)

(Only the U.S. Supreme Court can overrule its precedents)

-1 9-

Shelby County v. Holder, 570 U.S. 529 (2013)(Same)

Mims v. Arrow Financial Services, LLC, 565 U.S.

368 (2012)(Same)

United States v. Locke, 529 U.S. 89 (2000)(Same)

Brown v. United Airlines, Inc., 720 F.3d 60

(1st Cir. 2013)(Same)

Conclusion

For the reasons stated above in fact and law.

Certiorari must be aranh^a ami -t- V« ^ Pnnrfs -in hhfa

Commonwealth of Massachusetts manHafpfl ho oonform

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