Petition for Writ of Certiorari — Lonnie Kade Welsh, Petitioner v. Correct Care Recovery Solutions, et al.

NO.

In The Supreme Court of the United States

Lonnie Kade Welsh

VS.

/

Correct Care Recovery Solutions

On Petition for a Writ of Certiorari

From

United State Court of Appeals Fifth Circuit

Court of Appeals Cause No. 19-10825

wse

i

JUN 1 1 2021

I. Questions Presented for Review

There is a class in America today, that it has become fashionable to diminish their rights and lives,

to where they are of little value. In keeping with this new tradition, the Fifth Circuit has created an

American case system by pronouncing a form of civil death upon the petitioner. By manipulating

the truth, The Fifth Circle Panel expressed in their opinion that petitioner is not to be afforded

protection for his liberty or property under any constitutional provision, both to be forfeited to the

state, being considered de minimis restrictions that do not impose atypical and significant hardship.

There was no right to treatment interest because it is not in the states. His legal Mail can go

undelivered for months to be considered only negligent. The Force can be used that caused

bruising, bleeding, scarring of hands with nerve damage to be considered only de minimis injury.

He does not deserve human dignity when it causes only psychological injury. And the state is

allowed to punish the spoken word. The class is considered as patients not prisoners referred to as

Sexual Violent Predator. Therefore, the questions proposed are:

1.

Does petitioner retain any rights, if so, what are they, and by what standard should they be

judged?

2. Does the privileges and immunities clause impose a duty protection by the sovereign’s criminals’

law?

3. If no defendants have been served and the appeal court dismisses the claim for failure to brief

should the pro se litigant should be allowed to rebrief?

ii

II. Table of Contents

III. Table of authorities

.pg. 1V,V,V1

1. United States Supreme court cases

.pg. IV

2. Circuit Court cases

.pg. vii

3. opinion by legal scholars

pg. XI, Xll

4. opinion by scientific scholars

.pg. Xll, xm

IV. petition for writ of Certiorari

Pg-1

V. opinion below

Pg-1

VI. jurisdiction

pg.2

VII. constitutional issues

.pg.2,3

1. United States constitutional First Amendment

.pg.2

2. United States constitutional 4th amendment

.pg.2

3. United States constitutional 14th amendment

.pg.3

Vin. state of the case

.pg. 3,4,5,6,7

Reason to Grant the Writ

IV

Appendix

vii

Statement of Case

.pg. 2,4,5,6,7

iii

IX.

REASON TO GRANT THE WRIT

1. this is bedlam in the lower court based upon how to apply the constitution to the sexually

violent predator class between the circuit courts and this court's decision in case Kansas versus

Hendricks 521 U. S. 346. This court should take the time to establish the rule of law for this case.

Pg. 8-20

2.

The court should take the opportunity to decide if the 14th amendment's privilege an

immunity's clause applies to the protection of the citizens by the state enforcing its criminal laws.

pg. 20-22

3.The result of this case should give the court pause to reconsider. Not because it was

wrongly reached, but because of the manipulation the 5th circuit used to reach the opinion.

Pg. 12-25

ni. Table of Authorities

1 .United States Supreme court cases

pg IV- Vlll

Addington v. Texas 441 U.S. 418

pg. 15

Anderson v. Liberty lobby Inc. 447 U. S. 242

pg.24

Barbier v. Connolly 113U.S. 27

pg. 18

Bell v. Wolfish 441 U.S. 520

pg. 8,9

Bowman v. Lewis 101 U.S. 22

pg. 18

Boyd v. United States 116 U. S. 616

Pg-20

■ B rown vr Plata' 563 U.S. 493

pg. 13

iv

II. Table of Contents

III. Table of authorities

.pg. iv,v,vi

1. United States Supreme court cases

•Pg- iv

2. Circuit Court cases

.pg. vii

3. opinion by legal scholars

pg. XI, Xll

4. opinion by scientific scholars

.pg. Xll, Xlll

IV. petition for writ of Certiorari

Pg-1

V. opinion below

Pg-1

VI. jurisdiction

Pg-2

VII. constitutional issues

pg-2,3

1. United States constitutional First Amendment

Pg- 2

2. United States constitutional 4th amendment

Pg- 2

3. United States constitutional 14th amendment

Pg- 2

VIII. state of the case

.pg. 3,4,5,6,7

Reason to Grant the Writ

IV

Appendix

,V11

Statement of Case

.pg. 2,4,5,6,7

iii

Joint Anti-Fascist Refugee Committee v. McGrath

pg. 18

June, Med. Servs. L.L.C. v. Russo 140 S. Ct. 2103

Pg-18

Loretto v. Teleprompter Manhattan CATV 458 U.S. 419,435

Pg-14

Revere v. Massachusetts General Hospital 463 U.S. 239

pg. 19

Rivers v. Roadway express, Inc. 511 U.S. 298

pg. 24

Roller v. Holly 176 U.S. 398

Pg-7

Rucho v. Common Cause 139 S.Ct. 2484

pg. 18

Sandin v. Connor 55 U.S. 472

pg. 8,24

Selling v. Young 531 U.S. 250

Pg- 9

Shelton v. Doe 538 U. S. 84

pg. 18

Shelly v. Kraemer 334 U.S. 1, 10

Pg-14

Strauder v. West 100 U.S. 303

pg. 18

Tennessee v. Gamer 471 U.S. 1

Pg- 12

Thurston Motor Lines Inc v. Jordan Rand Ltd 460 U.S. 533

pg. 24

Trop v. Dulles 356 U.S. 86

Pg- io

Turner v. Safely 482 U.S. 78

pg. 10,19

United States v. Cruikshank 92 U.S. 542

pg- 22

United States v. Jones 463 U.S. 354

pg. 15

United States v. Nixon 418 U.S. 683

pg. 24

Watts v. Indiana 338 U.S. 49

pg. 13

Youngberg v. Romeo 457 U. S. 307

Pg-9

Zinermon v. Burch 494 U.S. 113

Pg- 11^

vi

Wilkinsv. Gaddy 559 U. S. 34

pg-11

Appendix IV

Appendix A: Fifth Circuit Panel Opinion

pg.27

Appendix B: Petition for rehearing en bunc denied, on March 12, 2021

pg.27

Appendix C: Applet Brief Filed

pg.27

Appendix D: Texas Health and Safety Code 841-0831 (b)

Pg- 27

Appendix E: Texas Health and Safety Code 841.0838 (a)(2) (B)(1)

pg. 28

Appendix F: 18 U.S. S. 3583 (d) (2)

■pg.28

2 Circuit Court Cases

,V111

Certificate of Service

pg.26

Opinions by Scientific Scholars

,X11,X111

ScholarlyOpinion

...Xlll

Prayer

pg. 25

vit

2 Circuit Court Cases

Allison v. Snyder 332 F. 3d 1076 (COA 7 2003)

Pg-9

Benjamin v. Fraser 264 F. 3d 175 (COA2 2001)

Pg- 8

Bila v. Geo Care L.L.C. 981 F.3d 903,912 (COA11 2020)

pg. 9,18

Bohannan v. Doe 527 F. App’x 283 (COA 5 2013)

Pg-6

Brown v. Taylor 911 F. 3d 235 (COA 5 2018)

Pg- 4,5

Buckley v. Rogerson 133 F. 3d 125 (COA 8 1998)

Pg- 12

Cameron v. Tomes 990 F.2d 14 (COA 1 1993)

Pg- 12

Chandler v. Baird 962 F.2d 1057 (COA 11 1991)

pg. 13

Corfield v. Coryell 6 F. Cas 546 (No. 3230) (CCE.D. Pa)

Pg- 21

Cortez v. McCauley 478 F. 3d 1108 (COA 10 2007)

pg. 13

Cowans v. Wyrick 862 F. 2d 697 (COA 8 1988)

pg. 13

Deavers V. Santiago 243 F. App’x 719 (COA 3 2007)

Pg. 4,8

Delaney v. De Telia 256 F.3d 679 (COA 7 2001)

pg. 13

Dilworth v. Adams 841 F.3d 246 (COA 4 2016)

pg. 12

Fuentes v. Wagner 206 F.3d 1162 (COA 3 2000)

Pg- 8

Grissom v. Roberts 902 F.3d 1162 (COA 10 2018)

Pg-8

Harris v. Hahn 827 F. 3d 359 (COA 2016)

Pg-6

Healey v. Spencer 765 F. 3d (COA 1 2014)

Pg* 9

Hobbs v. Lockhart 46 F.3d 864 (COA 8 1995)

pg. 13

Hydrick v. Hunter 500 F.3d 978 (COA 9 2007)

Pg* 9

IKerd v Blair 101 F.

•• Pg-1-3

viii

Jacoby v. Baldwin County 835 F. 3d 1338 (COA 11 2016)

Pg-9

J.H. v. Williamson County 951 F. 3d 709 (COA 6 2019)

pg. 12

Jordan v. Gardner 986 F. 2d 1521 (COA 9 1993) (en banc)

pg. 14

Karjens v. Lourey (published) No. 18-3343 Feb. 24, 2021 (COA 8 Cir 2021)

Pg-9

Kerviv v. Barnes 787 F.3d 833 (COA7 2015). Pg

12

King v. Greenbaltt 149 F. 3d 9 (COA 1 1998)

pg. 12

Learner v Fauver 288 F. 3d 9 (COA 3 2002)

Pg- 11

Lynch v. Baxley 844. F. 2d 1452 (COA 11 1984)

pg. 18

Matherly v. Andrews 859 F.3d 264 (COA 4 2017)

pg. 9,10

Mitchell v. Dupnik 75 F. 3d 517 (COA 9 1996)

Pg-9

Palakovic v. Wetzel 854 F. 3d 209 (COA 3 2017)

pg. 12

Partridge v. Two Unknow Police Officers 791 F. 2d 1182 (COA 5 1986)

pg. 13

Rapier v. Harris 172 F.3d 999 (COA 7 1999)

Pg- 9

Senty - Haugen v. Goodno 462 F. 3d 876 (COA 8 2006)

pg. 4,10

Surpenant v. Rivas 424 F. 3d 5 (COA 1 2005)

Pg-9

Thielman v. Leean 2828 F. 3d 478 (COA 7 2002)

Pg-4

Thomas S. by Brooke v. Flaherty 902 F. 2d 250 (COA 4 1990)

Pg- 17

Thomas v. Bryant 614 F. 3d 1288 (Coal 1 2010)

pg. 12

United States v. Castro 166 F. 3d 728 (COA 5 1999)

Pg- 11

United States v. Lyons 731 F. 2d 243 (COA 5 1984 (en banc)

Pg- 16

Wallace v. Baldwin 951 F. 3d 709 (COA 7 2018)

pg. 12

Wells v. Franzen 777 F. 2d 1258 (COA? 1-985)

■pgrT7

ix

West v. Macht 235 F. Supp 2d 966 (E.D. Wis 2002)

Pg-12

West v. Schwebke 333 F. 3d 745 (COA 7 2003)

Pg-9

Williamson v. Thomas 660 F. 2d 680 (COA 4 1981)

Pg-9

White v Thomas 660 F.2d 680 (COA5 1981)

Pg- 6

3. Scholarly Opinion

1 Blackstone Commentaries on the Laws of England *

Pg--21

Blackstone Commentaries of the Laws of England * 373

pg.21

Blackstone Commentaries of the Laws of England Book 1, Chapter 1. Of the Absolute Rights of

the Individual (Lonang Institute ed 2005)

Pg.21

Congress Globe 42d Congress, 1st Session, Ap'p 69, Representative Shellabarger, (1871)

pg.21

George Wyth’s June 27,1788 Report; Senate Legislative Journals September 8, 1789 Journal of the

First Session of the Senate of the United States, reprinted 1 Documentary History of the First

Federal Congress of the United States: 4 March 1789 - 3 March 1791 (Linda Grant De Pauw Et al

eds. (19721. ..

■pgrW

John Locke, Two Treatises of Government, Chapter 2, § 11 The State of Nature, pg. 74 (Lonang

pg.22

Institute ed 2005)

John Locke, Two Treaties of Government, *326 (Peter Laslett ed., Cambridge University Press

pg. 22

1988).

Magna Carta Article 29, in 25 Edw. 1 c. 9 (1297) (Article 29 in the text of the Magna Carta in

1215)

■Pg-21

Massachusetts Constitution of 1780, pr 1 Art 1, reprinted The complete Bill of Rights: The Drafters

Debates, Source and Origins at 637 (Neil H Cogan ed., 1997).

Pg-14

New Hampshire Constitution of 1783 Chapter 1, Art 1, reprinted, The complete Bill of Rights: The

Drafters Debates, Source and Origins at 634-638 (Neil H. Cogan ed., 1997).

Pg-14

Pennsylvania Constitution of 1776 Chapter 1, Art. 1, reprinted The Complete Bill of Rights: The

Drafters Debates, Sources and Origins at 63, (Neil H. Cogan ed., 1997).

Pg-14

Virginia Convention Proposal for the First Amendment (June 27, 2788) The Complete Bill of

Rights: The Drafters Debates, Sources and Origins a 636 (Neil H Cogan ed., 1997)

xi

Pg-14

Vermont Constitution of 1777, Chapter One, Article 1, reprinted, the complete Bill of Rights: the

drafter’s debates, sources, and Origins at 640 (Neil H. Kogan ed., 1977)

Pg-14

4. Opinions by Scientific Scholars

American Psychiatric Association standard on the insanity defense, 140 AM J. psychiatric 681

(1983).

Pg-15

Christopher L. Coffin, case law and clinical considerations involving physical restraint and

seclusion for institutionalized persons with mental disabilities, 23 mental and physical disability L.

Rev. 597(1999).

Pg-17

Deny, criminal responsibility and other criminal forensic issues, Anne Larrabee (ed.) forensic

neuropsychology: A scientific approach (pp/425-463) (2005), New York Oxford University Press.

Pg. 17

Kalis, Mojzisch, Schweizer, & Kaiser, weakness of will, The Interdisciplinary Perspective,

Cognitive, affective & Behavioral Neuroscience, 8 (4), (2008)

xii

pg. 16,17

Neuro, Volitional Impairment, and sexual violent predators: A review of the literature and the law

and their application to Civil Commitment Proceedings, Fabian Vol. 17, Issue 1 (2012).

•Pg-16

Pirtosek, Georgiev, & Gregoric - Kramberger, decision making and the brain: Neurologist’s

view, Interdisciplinary description of complex systems 7, (2009).

Pg-17

Saver and Damasio, preserved access and processing of social knowledge in a patient with acquired

sociopathy due to ventromedial frontal damage, Neuropsychologic 29, (1991)

Spinella & White, Neuroana

Pg-16

pg. tomical Substrates for sex offenders, International Journal of

pg. 16

Forensic Psychology 1 (3), (2006)

Stone & Thompson Executive Function Impairment in Sexual Offenders, Journal of Individual

Psychology 57 (1) (2001).

Pg-16

xiii

In The Supreme Court Of The United States

IV. Petition For Writ of Certiorari

Petitioner respectfully prays the court grants this Writ of Certiorari to review the judgment of the Fifth

Circuit, to bring conformity within constitutional law as this case deals with issue federal circuits are split

upon and opinions that are fundamentally different from this court's prior opinions. This case also deals

with how to apply the constitution in its historic meaning upon a class of American citizens that has not

been reached by this court but should be. Finally, petitioner additionally prays the court grants this writ of

certiorari to prevent the Fifth Circuit panel from manipulating constitutional law, so they do not have to

issue an opinion consistent with this court's prior opinions, Fifth Circuits precedents, or issues new to the

Fifth Circuit. The Fifth Circuit’s opinion flaunts the rule of law, making prior Supreme Court opinions and

Fifth Circuits presidents applicable by election only.

V. Opinion Below

The Fifth Circuit opinion affirmed in part and dismissed in large part in cause No. 19-10825 the opinion of

the Northern District of Texas, Lubbock division and cause No. 5: 18 -cv-020.

The opinion for the Fifth Circuit is not published and is designated at Lonnie Welsh v Correct Care

Recovery solutions decided February 9th, 2021, at case No. 19 -10825. See Appendix A Fifth Circuit Panel

Opinion

Petition for rehearing en bunc denied, on March 12, 2021. See: Appendix B.

Appendix C: Applet Brief

Appendix D: Texas Health and safety cod 841.0831 (b)

1

VI. Jurisdiction

The Fifth Circuit decided case No. 19 - 10825 on February 9, 2021. Welsh subsequently filed for

petition for rehearing en banc that was denied on March 12,2021. The petition for writ of certiorari

is timely filed within 90 days placed with United States Postal Service postage prepaid to The

United States Supreme Court rule 29(2) and 13 (1). jurisdiction under statute 28 U.S.C. 1254

allows discretionary jurisdiction from a decision of the Court of Appeals.

\

VIII. Constitutional Issues

1. United States Constitutional First Amendment:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble and to petition the government for a redress of grievances.

2. United States Constitutional Fourth Amendment:

The right of the people to be secure and their person, houses, papers and effects against

unreasonable searches and seizures and no warrants shall issue but upon probable cause, supported

by oath or affirmation, and particularly describing the place to be searched and the person or things

to be seized.

2

3. United States Constitutional Fourteenth Amendment:

Amendment Section 1.

All persons bom and naturalized in the United states and subject to the jurisdiction thereof are

citizens of the United States and of the state wherein they reside no state shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the United States, nor shall any

state deprive any persons, of life, liberty or property, without due process of law; nor deny to any

person within its jurisdiction to equal protection of the laws.

VIII. Statement Of The Case

This case comes to the court based on a judgment on the pleading. Petitioner lives under a

rule of law that are amorphous in their application, being the very concept of arbitrary and

capricious contrary to the purpose of a written constitution. The very pride of American principles

says Mr Paine to Mr Burke was to establish the rights of man by a written charter.

Not only does petitioner Welsh a member of a class of despised human beings, having to

worry about the legislative an executive branch of government imposing oppressive living

conditions, but he must worry about the federal judiciary honoring the oppressive conditions

despite the very history of natural rights and the reason our ancestors join society for the protection

of those rights. The Fifth Circuit used subjective standards such as atypical and significant

hardship, de minimis, restrictions, significant injury requirements, state interest in supervision and

treatment, and the states interest in security, order, and rehabilitation.

The Fifth Circuit dismissed claims of property rights and liberty by the placement in

solitary confinement under “atypical and significant hardship” and” de minimis restrictions—all3

without due process of law, or even an inquiry into prison solitary confinement conditions and

civil commitment solitary confinement conditions the Fifth Circuit used cases like Sandin v.

Connor 515 U. S. 472; Deavers v. Santiago 243 F. App’x 719 721 (COA3 2007); Thielman v.

Leean 2828 F. 3d 478 (COA7 2002); and Senty - Haugen v. Goodno 462 F. 3d 876 (COA8 2006);

to dismiss Welsh’s claim of placement in solitary confinement for a period of ten-month; Fifth

Amendment taking claim; a Fourth Amendment unreasonable seizure claim; an First Amendment

right to news and information; and a Fourteenth Amendment right to acquire use, and dispose of

property.

The Fifth Circuit denied a right to treatment for the ten-month that included a period in

solitary confinement basing in their opinion the three hours of treatment that Welsh did receive

was within, they claim in the State’s “long-term supervision and treatment goals of the state and

how Welsh could not prove he would be released. Citing Brown v. Taylor 911 F.3d 235, 243-244

(COA5 2018) and Senty- Haugen v. Goodno 462 F. 3d 876, 887 (COA8 2006). This dismissal did

not even consider the fact that the State of Texas has outlined its interest in treatment in Texas

Health and Safety Code 841.0831 that requires treatment for the seamless transition to release

Welsh from State Custody. See Appendix E.

The Fifth Circuit would dismiss an excessive use of force claim using it on subjective

beliefs of objective standards regardless that the state of Texas has a Ford its own objective

requirements for the use of force by statute Texas Health and safety code 841.0838 a contract

between the state of Texas and Correct Care Recovery.

Solutions. Then the court would deny the protection of personal security by claiming the bruising,

swelling, bleeding, scarring and nerve damage produced by the salt did not constitute enough of

an injury for constitutional protection See Appendix F, Texas Health and safety code 841.0838.

4

the Fifth Circuit would determine that demeaning, dehumanizing and indignant conditions of

confinement that forced Welsh to eat his food with his bare hands, piled all together like a pig’s

slop bucket for 14 days without the ability to wash or clean himself properly except once every

three days was acceptable. The Fifth Circuit determine that these arbitrary conditions serve the

state's securities interest in disciplining Welsh and therefore was in the interest of “supervision"

and “treatment” under its precedence Brown v. Taylor 911 F. 3D 235,243 244(COA5 2018). The

Circuit Court also rationalize that because well she only showed mental and emotional injuries it

did not amount to a due process violation.

Our ancestors entered society for the purpose of personal security the broad right

encompasses his right not to be assaulted and the protection of his property. Welsh made a class

of one equal protection claim against the city of Littlefield denying him the right to its Protective

Services and the privileges and immunities of the 14th amendment to call upon the government

for protection, the very reasoning to enter society. The Fifth Circuit said that Welsh did not make

an equal protection claim because he only asserted that he was denied his right to criminal charges

against those who assaulted him, and that equal protection was inapposite because it only keeps

governmental officials” treating different persons who are in all relevant respects alike.” Citing

Harris v. Hahn 827 F. 3d 359, 365(COA5 2016). The Circuit Court also determined that the

privilege an immunities clause only prevents the state from” discriminating against citizens of

another state in favor of its own citizens” citing White v. Thomas 660 F. 2d 680, 685, (COA5

1981). The lower circuits denial of equal protection and privileges and immunities amount to

injustice.

Next the Fifth Circuit would deny the right to even speak out against a state employee in

private based upon the way that employee was treating him confusing the facts which in itself is a

5

jury question all in contravention to the First amendment which has done all the balancing that

was do in this area. The Circuit Court would conclude that restrictions on these rights ‘are

permissible so long as they advanced the state’s interest in security, order and rehabilitation.”

Citing Bohannon v. Doe 527 App’x 283, 294 (COA5 2013).

Finally, the Fifth Circuit does not consider that Welsh is pro se and that both his briefs and

his pleadings were dismissed for failing to plead or brief a certain level of facts in case laws,

therefore, dismissed the appeal and case with prejudice. The Circuit Court claimed that Welsh did

not brief a different standard than atypical and significant hardship and de minimis restrictions

despite the eighteen pages devoted to countering the dismissal of his conditions of confinement

central to those issues; that he did not adequately brief his privacy claim despite citing two cases

in support, that he did not show the defendants intentionally interfered with his legal mail despite

knowing he was in County jail and refusing to forward the Mail; how the facts were misstated by

the Fifth Circuit in the First Amendment retaliation claim despite what was plead; and the claim

of inaccurate diagnosis under the diagnostic and statistic manual of mental health disorders that

failed to present facts or are arguments indicating error therefore inadequately briefed despite

Welsh did brief that determined by professionals- that Ephebophilia is not professionally

recognized by medical professionals; that the Biannual Review opinion failed to connect an

emotional or volitional disorder and how even the District Court recognized how the opinion was

predicated on disciplinary infractions and not a sexual disorder. Given all the above there should

not be a sua sponte dismissal with prejudice for failure to brief adequately without an opportunity

to amend the brief before dismissal in light of the fact that no defendant had been served in the

case unless it appears beyond doubt that the plaintiff cannot adequately brief the claim.

6

What plaintiff ask is what has always been asked of the courts. A determination on how

such arbitrary conduct should be checked, what remedies against it should be afforded, the means

by which the right should be made effective, are all questions that cannot be so dogmatically

answered that has to preclude the various solutions which spring from an allowable range of

judgment on issues not susceptible to quantitative solutions.

The touchstone of the due process clause can be traced back in time 800 years to the Magna

Carta that prevents arbitrary and capricious enforcement of the law. Therefore, in the ordinary

sense we quite naturally assume that our constitution is bom of principles to invest in all legitimate

governments the duty to secure equally the rights of every person to life, liberty, and the pursuit

of happiness whose ends are compatible mutually enhancing and coincidental thus made in

alienable to the endeavors of freedom. “Always should the right of a citizen to due process of

law... rest upon a basis more substantial than favor of discretion.” Roller v. Holly 176 U.S.

398,409.

IX. Reason To Grant The Writ

1.

THERE IS BEDLAM IN THE LOWER COURT BASED UPON HOW TO APPLY

THE CONSTITUTION TO THE SEXUALLY VIOLENT PREDATOR CLASS BETWEEN

THE CIRCUIT COURTS AND THIS COURT’S PRIOR DECISIONS IN KANSAS V.

HENDRICKS 521 U.S. 346. THIS COURT SHOULD TAKE THE OPPORTUNITY TO

ESTABLISH THE RULE OF LAW FOR THIS CLASS.

7

The Fifth Circuit has adopted the Sandin v. Connor “atypical and significant hardship

standard” joining the Third Circuit opinion in Deavers v. Santiago 243 F. App’x 719,721, (COA3

2007). The Fifth Circuit would also claim that the Seventh Circuit opinion in Thielman v. Leean

r'

282 F.3d 478 3d (COA72002) would also support their opinion but a closer look at that case would

show that it used the” atypical and significant hardship standard” for the state created Liberty

interest and Bell v. Wolfish 441 U.S. 520 for substantive rights. See Thielman v. leean Supra at

485, N.3.

The reading of Sandin v. Connor supra at 484, would preclude it used against a pretrial

detainee class holding, “Bell dealt with the interest of pretrial detainees and not convicted

prisoners. The court in bail correctly noted that a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of law. The court expressed concern that a

state would attempt to punish a detainee for the crime for which he was indicted be a pre conviction

holding conditions.”

The vast majority of circuit appeals courts would refrain from applying Sandin v. Connor

to even the state created Liberty interest, choosing instead to apply Hewitt v Helms 459 U.S. 460.

See Benjamin v Fraser 264 F. 3d 175 188- 189, N. 11 (COA2 2001); Fuentes v. Wagner 206 F. 3d

335,341- 342, N. 9 (COA3 2000); Jacoby v. Baldwin County 835 F.3d 1338,1347-1348 (COA11

2016); Mitchell v. Dupnik 75 F. 3d 517, 524 (COA9 1996); Rapier v. Harris 172 F.3d 999,1005

(COA7 1999); Surpenant v. Rivas 424 F. 3d 5,17 (COA1 2005); Williamson v Stirling 912 F. 3d

154, 174 (COA4 2018).

The Eighth circuit recently decided Karjens v Lourey No. 18-3343 decision date February 24,

2021 that brought it into line with the Fourth Circuit opinion in Matherly v. Andrews 859 F.3d

264,274-276 (COA4 2017). These opinions would hold that a civilly committed individual

should be treated as pretrial detainees under the Bell v. Wolfish 441 U.S. 520 case laws.

8

The Eight Circuit would also cite to the First Circuit case in Healey v. Spencer 765 F.3d 65,7879 (COA1 2014) and Allison v Snyder 332 F.3d 1076,1079 (COA7 2003). But the Eighth

Circuit is mistaken in its assessment; Allison v. Snyder dealt with pre-trial detainees awaiting

civil commitment trial, and Healey v. Spencer citing to Bell v. Wolfish had nothing to do with

the confinement conditions. Healey Supra at 78-79 cited Selling v. Young 531 U.S. 250, 265 and

Youngberg v. Romeo457 U.S. 307, 316, basically stating that the confinement conditions must

bear a reasonable relation to the purpose to commitment based upon professional judgement.

The Healey v. Spencer case from the First Circuit resembles cases from the Seventh

Circuity West v. Schwebke 333 F. 3d 745, 749 (COA7 2003) (“all the constitution requires is

that punishment be avoided and medical judgment be exercised); the Ninth Circuit Hydrick v.

Hunter 500 F. 3d 978, 997 (COA9 2007) “The Fourteenth Amendment requires that civilly

committed person not be subjected to the conditions that amount to punishment with the bounds

of professional judgement.”); Bilal v Geo Care L.L.C. 981 F.3d 903,912 (COA11 2020) (“the

constitution only requires that the courts make certain that professional judgment in fact was

exercised’ in the times and way the institution restrains the persons liberty: quoting Youngberg

321).

The Fifth Circuits holding in Brown v. Taylor 911 F. 3d 235 would uphold any state

interest regardless of punitive confinement and harsh living conditions without any inquiry into

its constitutionality based on the states interest in “supervision and treatment.” The Fifth Circuit

said the reason Welsh was committed was within the States interest to hold him in solitary

confinement while he was on bail. See Appendix A 19-20. But “Mr. Justice Holms one of the

profoundest thinkers who ever sat on this Court, expressed the conviction that T do not think the

United States would come to an end if we lost our power to declare an Act of Congress void, I do

think the union wnnld be im

9

several states. “Holmes’s speeches 102” Justice Frankfurter, with whom Justice Burto. Clark and

Harlan joined dissenting in Trop v. Dulles 356 U. S. 86,128.

The Fifth Circuits jurisprudence in this area of the First Amendment rights also tracks the

“states interest in security, order, and rehabilitation.” Bohannan v. Doe 527 F. App’x 283, 294

(COA5 2013). Other circuits would use the Turner v. Safely 482 U.S. 78 rational relationship

test See Brown v. Phillips 801 F.3d 849, 853-854 (COA7 2018); Pesci v. Budz 935 F.3d 1159,

1165 (COA4 2017); Matherly v Andrews 859 F. 3d 264, 282 (COA4 2017).

There is a problem with all the case laws that use the rational relationship test of the

state’s interest test and that is Welsh and those similarly situated, cannot be punished at all, then

there is a long list of cases from the Federal sentencing guidelines 18 U.S.C. § 3583 (d) (2), See

Appendix G. That restriction can involve no greater deprivation of liberty than is reasonably

necessary to advance the protection of the public for future crimes of probations and parolees.

With respect to the treatment that was provided only allowing three hours of treatment in a tenmonth span while in solitary confinement the state had created its own interest by statute. See

Appendix E. Texas Health and Safety Code 841. 0831.Though its terms are specific that through

treatment Welsh would have seamless transition through the tier system to release. The Fifth

circuit through its holding in Brown v. Taylor Supra and Senty - Haugen v. Goodno Supra that

the states interest in supervision and treatment was not to provide treatment and Welsh could not

show the treatment would have provided release. In this case “the Due Process Clause protects

against arbitrary acts of government by promoting fairness in procedure and ‘barring certain

governmental actins regardless of the fairness of the procedures used to implement them.”

Zinermon v Burch 494 U.S. 133, 125-126 (quoting Daniels v. Williams 474 U.S. 327,331. Like

elsewhere in standards applying to the sexual violent predator there is a circuit split on the issue

of treatment, protected by the Due Process Clause when the state creates the interest. See Learner

v. Fauver 288 F.3d 532, 534 (COA3 2002) (“Here, the state has created a scheme in which

10

therapy is both mandated and promised, and the Department of Corrections is without discretion

to decline the obligations.’)

The use of force is also a standardless amorphous principle. First, the State of Texas grounds its

protection preventing force under certain limited situations. Relative here, force is to be only

used when the mentally impaired like Welsh is an imminent threat to himself or others, is to be

used as a last resort and by the least restricted means. See Appendix F. Texas Health and Safety

Code 841.0838 (a) (2) (B) (1); Mills v Rogers 457 U.S. 291, 300 “because state-created liberty

interests are entitled to the protection of the Federal Due process Clause, the full scope of the

patient’s due process rights may depend in part on the substantive liberty interest created by state

as well as Federal law.

The State protected right played no part in the Fifth Circuits judgement. Instead, it begins

by resolving fact questions of the reasonableness to use force without regard if they were

“objectively authorized and legally permitted to: use force. United States v. Castro 166 F. 3d

728, 734 (COA5 1999). Instead it solely relied on the Kinsley v. Hendrickson 135 S.Ct. 2466,

2473, relying on “the extent of the plaintiffs injury.”

The case was dismissed because Welsh’s bleeding, bruised, swollen, and scarred hand did not

fulfill an injury requirement for excessive force. This is an inappropriate reading of Kingsley v.

Hendrickson and can only produce bad social effects if followed. Further, such a reading would

be contrary to this Courts Fourth and Eighth Amendment case law. See Tennessee v. Gamer 471

U.S. 1, 8-9 and Wilkins v Gadddy 559 U.S. 34, 38,

In the prison context the Eleventh Circuit would determine that force against an inmate

who is mentally ill who places his hand in a food port is not an emergency to warrant force absent

professional medical judgment in violation of the evolving standards of decency and indifferent to

the inmate’s serious medical needs. See Thomas v. Bryant 614 F. 3d 1288,1299-1300,1303- 1304

11

(C0A11 2010) (citing Hudson v. McMillian 503 U.S. 1,8-9; Farmer v. Brennan 511 U.S. 825,

834’.

The court should take the opportunity to decide that the solitary confinement of the

mentally ill for long periods of time and absent professional judgment is prohibited by the 14th

amendment, several circuits have expressed the same in fear that it invokes long-term

psychological harm for the mentally ill regardless of if the individual is civilly committed as an

SVP or a prisoner in a prison or jail. See e.g., King v. Greenbalt 149 F. 3d 9,21-23 (COA1

1998); Cameron v. Tomes 990 F. 2d 14,19 (COA1 1993); West v. Macht 235 F. Supp 2d 966,

984 (E.D. Wis 2002); Dilworth v. Adams 84IF. 3d 246,253 (COA4 2016); Kervin v Barnes 787

F. 3d 833, 837 (COA7 2015); Wallace v. Baldwin 895 F. 3d 481,485 (COA7 2018); J. H. v

Williamson County 951 F. 3d 709,719 (COA6 2019). Buckley v Rogerson 133 F. 3d 125,129

(COA8 1998); Grissom v. Roberts 902 F. 3d 1162,1176-1177 (COA10 2018); Palakovic v

Wetzel 854 F.3d 209,225-226 (COA3 2017).

Justice Kennedy pointed out even in those who are not extremely mentally ill that over

“One hundred and twenty-five years ago, this court recognized that, even for prisoners’ sentence

to death, solitary confinement bears ‘a further terror and peculiar mark of infamy.’” Davis v.

Ayala 135s. ct. 2189, 2209 (J. Kennedy concurring)(quoting In re Medley 134 U. S. 160,170;

See also In re Medley Supra at 168 “a considerable number of the prisoners fell, after even as

short [solitary] confinement, into a semi- fatuous condition ... and others became violently

insane; others still, committed suicide; while those who stood the ordeal better we're not

generally reformed, and in most cases did not recover sufficient mental activity to be any

subsequent service to the community.

12

The court should also examine the right to personal security, if it would prevent the

government from placing an individual in solitaire without hygiene products and forcing him to

eat like an animal is a sordid aspect of confinement with devastating impact upon constitutional

guarantees when it affects the mental condition of the imprisoned as this is a form of “torture of

the mind” remanding this case declaring “protection against torture, physical or mental.” Palko v.

Connecticut 302 U. S. 319, 326. there must come ‘a point for this court should not be ignorant as

judges of what [they) no as men [and women].” Watts v. Indiana 338 U.S. 49, 52. This type of

injury should also be considered as harming “human dignity inherent in all persons.” See Brown

v. Plata 563 U.S. 493, 510.

There also seems to be confusion on the part of the Fifth Circuit that stating mental and

psychological harm is not significant injury. Justice Blackmun stated in Hudson v. Mcmillian

503 U.S. 1,16 he was “unaware of any precedent of [the Supreme] Court to the effect that

psychological pain is not cognizable for constitutional purposes.” (concurring opinion). Several

circuit courts recognize mental and physiological injury including the Fifth Circuit and the court

should make it clear that it is a cognizable injury. See Partridge v. Two Unknown Police Officers

791 F. 2d 1182,1187 (COA5 1986); Ikerd v Blair 101 F. 3d 430,434-435 (COA5 1996);

Chandler v Baird 926 F.2d 1057,1066 (COA11 1991); Cowans v 862 F. 2d 697, 700 (COA8

1988); Hobbs v. Lockhart 46 F.3d 864, 869 (COA8 1995); Delaney v De Telia 256 F. 3d 679.

685 (COA7 2001); Jordan v. Gardner 986 F. 2d 1521,1525 (COA9 1993) (en banc); Cortez v

McCauley 478 F. 3d 1108,1129 (COA10 2007).

Can a provision of the constitution be de minimis? The right to acquire, possess, use, and

dispose of property is what the due process clause was meant to protect. See Senate Legislative

4n-413

r

Documentary History of the First Federal Congress of America 4 March 1789-3March 1791 at

160, (Linda Grant De Pauwet al eds. 1972). See also Amendments to the Constitution purposed

by the states of Virginia, New Hampshire, Vermont, New York, and Massachusetts reprinted at

The Complete Bill of Rights, The Drafters Debates, Sources and Originals 634-340 (Neil H

Coganed., 1997).

This is no less what the Supreme Court has held what the Due Process Clause protects

time after time. See Lynch v. Household Finance Corp. 405 U.S 538,545; Shelly v. Kraemer 334

U.S. 1,10; Loretto v. Teleprompter Manhattan CATV 458 U.S. 419,435; Buchana v. Warley

245 U. S. 60, 74; “Property is more than the mere thing which a person owns. It is elementary

that it includes the right to acquire, use, and dispose of it. The Constitution protects these

essential attributes of the property.

There is also a misunderstanding of what constitutes punishment the court should decide

if the taking of personal property and confinement in an isolation cell for ten months is historical

punishment. The nature of punishment in the history of Anglo - American tradition, has

exercised its power to punish by the effective loss of Liberty and that of rights retained in an

impoverished measure a concept that has “historically been regarded as a punishment. Kennedy

v. Mendoza Martinez 372 U.S. 144,168 (citing Cummings v Missouri 4 Wall 277, 320, 321).

Therefore, tracing the historic idea of punishment to Cummings v. Missouri the text of that great

case is clear, the act “to inflict punishment by depriving the parties, who had committed them, of

some of the rights and privileges of citizens.” Id at 320.

The meaning of both de minimis and punishment should take its meaning from our most

ancient law. “No Freeman shall be taken or imprisoned, or be outlawed, or exiled, or any other

wise destroyed, nor will we pass upon him, nor condemn him but by lawful judgement of his

14

peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man

either Justice or Right.: Magna Carta Article 29, in 25 Edw. 1 c. 9 (1297) (Article 29 in the text

of the Magna Carta in 1215).

Finally, turning to the court’s opinion in Kansas v. Hendricks 521 U.S. 349 and Kansas v.

Crane 534 U.S. 407 the court spoke upon shared status under the law, considering it to be nonpunitive id at 368. Similarly situated, and condition of confinement resembling between civil

commitment classes. In Kansas v. Hendricks the court concluded that the “dangerously mentally

ill “is a “legitimate nonpunitive” objective being “historically so regarded.” id at 363. The court

determine that since the two commitment types “experience essentially the same conditions” in

the confinement conditions and “afforded the same conditions” in the civil confinement and are

afforded the same status” under the law. id at 368.

Likewise, in Kansas v. Crane 534 U.S. 407, 415 the court recognized, “as in other areas

of psychiatric, there may be ‘considerable overlap between a... defective understanding or

appreciation and... [an] ability two control... behavior.’ Nor, when considering civil commitment,

have we ordinarily distinguished for constitutional purposes among volitional, emotional, and

cognitive impairments, (quoting American Psychiatric Association 681, 685 (1983) (discussing

“psychotic” individuals:’ (citing United States v. Jones 463 U.S. 354; Addington v. Texas 441

U.S. 418).

Similarly, the nature of the states defined “behavioral abnormality” as expressed in United

States v. Lyons 731 F. 2d 243, 249 (COA5 1984) (en banc), “Most psychotic persons who fail a

volitional test would also fail a cognitive test, thus rendering the volitional test superfluous for

them.”

15

This distinction between volitional capacity and cognitive capacity has been identified

with peer studies within the psychological medical field. In a recent study by Dr. Fabian

published book Neuropsychology, Neuroscience, Volitional Impairment and Sexual Violent

Predators: A review of the literature and the law and their application to Civil commitment

Proceedings, Vol. 17, Issue 1, (2012), the doctor identifies neurodevelopment abnormalities in

the subcortical and prefrontal cortex of the brain structure that indicated sexual violent

impairment and cognitive impairment linked through the neuro-abnormalities.

.^

The study of neurological defects and behavioral dyscontrol for sex offenders has been

linked in other studies in neuropsychological research of prefrontal cortex and subcortical

development in Spinella & White Neuro anatomical substance for sex offenders. International

Journal of Forensic Psychology, 1 (3), 84-104 (2006); Saver and Damasio Preserved Access and

Processing of Social Knowledge in a patient with acquired sociopathy Due to Ventromedial

Frontal damage, neuropsychologia 29,1241 - 1249 (1991); Stone & Thompson Executive

Function Impairment In Sexual Offenders, Journal of Individual Psychology, 57 (1), 51-59

(2001).

The connection to the cognitive and volitional decision matrix has been established by

researcher’s who have proposed neuroanatomical and neuro -physiological correlations.

Accordingly, this neurocognitive compromise consistent with the executive functioning of the

brain in the volitional impaired CF Kalis, Mojzisch, Schweizer, Kaiser, and Akrasia, Weakness

of will. The Neuropsychiatry of Decision-Making: An Interdisciplinary perspective, cognitive,

Affective & Behavior Neuroscience, 8 (4) 402 -417-(2008); Pirtosek, Georgiev, & Gregoric Kramberger, decision making and The Brain:

16

Neurologist’ View, Interdisciplinary description of complex systems, 7, 38-53 (2009); Denny,

Criminal Responsibility and other criminal forensic issues, In Larrabee (Ed.), Forensic

Neuropsychology: A Scientific Approach (pp 425-463) at 443 (2005), New York Oxford

University Press.

Instituting the rule of law, by laws that have been accepted by a state’s secretary in the

administration code and promulgated by statute, reflects professional judgement under the

Youngberg v. Romero standard allowing individuals to live under a set rule of law instead of by

arbitrary fait have been applied equally to the two types of civil commitment. See e.g. West v.

Macht 235 F. Supp. 2d 966, 984 (E.D. Wis. 2002); Thomas s. by Brooks v., Flaherty 902 F.2d

250,258 (COA4 1990); Wells v. Franzen 777 F.2d 1258,1264 COA7 1985); See also

Christopher L. Coffin, case law and clinical considerations involving physical restraint and

seclusion for institutionalized persons with mental disabilities 23 Mental & Physical Disability

L. Rev 597, 599 (1999), “Many states, by statute or regulation, dictate procedures that mental

health clinicians must follow when ordering physical controls and monitoring their uses. In

States that do not outlined such procedures, clinicians should observe standards that have been

published by professional mental disability organizations [citing the APA Task Force Report] or

the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).”)

Justice Gorsuch discussed in a dissenting opinion the area of law on point for this

discussion, “After all, ‘living under a rule of law entails various suppositions, one of which is

that ‘all persons are entitled to be informed as to what the state commands of forbids.’

Papachristou v. Jacksonville 405 U.S. 156,162 (quote modified), The existence of an

administrable legal test even lies at the heart of what makes a case justifiable standard for

-resolving-itT^-dl-ueho-v—Gommon-Gause449-S7Gt—2484-(-slip-op—at-l-l-)-Nor-does-themeed4br17

clear rules dissipate as the stakes grow. If anything, the judicial responsibility to avoid

standardless decision making is at its apex ‘the most heated partisan issues, ‘slip op. at 15.” June,

Med. Servs. L.L.C. v. Russo 140 S.Ct. 2103,2179 (J. Gorsuch dissent).

Regardless, when applying a police power such as civil commitment regulations

that impart rights and privileges unto one group must be permitted to the other as well. Anything

less would be invidiously imposed against one name group in contravention to the equality of

civil rights all others enjoy. CF Barbier v. Connolly 113 U.S 27, 30-31; Minneapolis & St. L.R.

co. v. Beckwith 129 U.S. 26,29; Bowman v. Lewis 101 U.S. 22,31; Ex Parte Virginia 1 100 U.S

339, 347; Strauder v. West 100 U.S. 303, 306; Mayflower Farmers v. Ten Eyck 297 U.S. 266,

274.

But in both civil commitment classes even “while the state has a compelling and

legitimate interest in public safety, it cannot satisfy that interest ‘by means that broadly stifle

fundamental personal liberties when the end can be more narrowly achieved.: Bilal v. Geo Care,

L.L. C. 981 F.3d 903,916 [COA11 2020] (quoting Lynch v Baxley 744 F. 2d 1452,1459

(COA11 1984); Shelton v. Tucker 364 U.S. 479 488.

The distinction between the institutions was made clear my justice Stevens in

dicta when he wrote the majority opinion in Collins v. City of Harker Heights 503 U.S. 115,127128 “we have held, for example, that apart from the protection against cruel and unusual

punishment provided by the 8th amendment, CF, Huto v. Finney 437 U.S. 678, the due process

clause of its own force requires that conditions of confinement satisfy certain minimal standards

for pretrial detainees, see Bell v Wolfish 441U.S. 520, 535, N. 1/6, 545, four persons in mental

institutions, Younberg v. Romero 457 U.S. 307, 315-316, for convicted felons, Turner v. Safley

482 U.S. 78,94- 99, and for persons under arrest, Revere v Massachusetts General Hospital

18

463U. S. 239,244- 245. The ‘process’ that the constitution guarantees in connection with any

deprivation of Liberty thus includes a continuing obligation to satisfy certain minimal custodial

standards, “(other citations omitted).

It would become a different interpretation of the constitution to consider an institution

under a color of a different threshold then what it is purported to be. The natural colloque

begets when the standard is to be the mirror “the punishment of imprisonment, which is the

paradigmatic: affirmative disability or restraint” Smith v Doe 538 U.S. 84,100; we then have

lost sight of are ethical traditions, watering down our principles to serve special interests making

the terms of the constitution that prevents punishment absent a crime empty in its semantics.

“The principle then lies about like a loaded weapon ready for the hand of any authority it can

bring forward a plausible claim of an urgent need. Every repetition in beds that principle or

deeply in our law and thinking an expands it to new purposes. All who observe the work of court

are familiar with what judge Cardozo describe as ‘the tendency of a principle to expand itself to

the limit of its logic.’ a military commander may overstep the bounds of constitutionality, and it

is an incident, but if we receive and approve that passing incident becomes the doctrine of the

constitution, there it has a generative power of its own and all that it creates will be in its own

image” Korematsu v. United States 323 U.S. 214,246 (J. Jackson dissenting).

And it is that very concept that will start the death of liberty if the Court denies Certiorari.

In no time at all other courts will cite to the Fifth Circuits opinion that would deny liberty and

^property rights procedural steps to refrain from mistaken deprivation given it the hashtag cert

denied allowing silent validity to the use of draconian measures by the standards of atypical and

significate hardship and de minimis restrictions, is how “illegitimate and unconstitutional

19

adhering to the rule that constitutional provisions for the security of persons and property should

be liberally construed. A close and literal construction deprives them of half their efficacy, and

leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is

the duty of court’s to be watchful for the constitutional rights of the citizens, and against any

stealthy encroachments there on. Their motto should be ‘obsta principiis.

Boyd v. United

States 116U.S. 616,635.

2. THE COURT SHOULD TAKE THE OPPORTUNITY TO DECIDE IF THE

FOURTEENTH AMENDMENT PRIVILEGES AND IMMUNITIES CLAUSE APPLIES

TO THE PROTECTION OF THE CITIZENS BY THE STATE ENFORCING ITS

CRIMINAL LAWS.

Petitioner Welsh claimed that the city of Littlefield refusal to enforce the State of Texas

criminal laws found within its Penal Code violated and abridged is privilege of citizenship found

within the Fourteenth Amendment. The Fifth Circuit responded that “the privileges and

immunities clause is inapt because it ‘prevents a state from discriminating against citizens of

another state in favor of its own citizens,’ and Welsh does not allege that he was treated

differently than a citizen of another state.” See Appendix A pg. 12-13 (quoting White v. Thomas

660 F. 2d 680, 685 (COA5 2016).

In book one, chapter one, Blackstone in his Commentaries on the laws of England states

“It is ordained by Magna Carta, that no free man shall be outlawed, that is, put out of the

protection and benefit of the laws, but according to the law of the land.”

20

Where he spoke obligations in the form of a duty, as allegiance is “considered as the duty

of the people, and protection is the duty of the magistrate.” But he also spoke of it as a right,

“allegiance is the right of the magistrate, and protection the right of the people.” Making clear

they are, reciprocally, the rights as well as duties of each other.” See Blackstone Book One,

Chapter 1 of The Absolute Rights of the Individual. (Lonang ed 2005).

This court has recognized that Justice Washington opinion in Corfield v. Coryell, 6 F.

Cas. 546, 551- 552 (NO. 3230) (CCED Pa 1825) was instrumental informing the Fourteenth

Amendment Privileges and immunities Clause. See Lynch v. Household Finance Corp. 405 U.S.

538, 545 (citing Long. Globe, 42 Long. 1st Sess, App 69 (1871) (Rep Shellabarger, quoting from

Corfield v. Coryell, 6 F. Cas 546, 551-552 (No. 3230) (CCED Pa 1825) See also McDonald v.

City of Chicago 130 S. Ct. 3020, 3067 (Justice Thomas Concurring) (“What were the ‘Privileges

and Immunities of Citizens in the several states?)” That question was answered perhaps most

famously by Justice Burshord Washington sitting as Circuit Justice in Corfield v. Coryell T f.

Cas 546, 551-552 (No. 3230) (CCED Pa 1825).

So, what are these privileges and immunities? Justice Washington thought them

“fundamental, which are rights that belong to citizens of a free government.” Which when he

compiled them under the list of “general heads” listing the “protection of the government as a

fundamental privilege and immunity.” Corfield v. Coryell Supra at 551-552.

Even the very controversial United States v. Cruikshank 92 U.S. 542, 549 track the

language of Blackstone of the duty the sovereigns. We have in our political system a

government of the United States and a government of each of the several states. Each one of

these governments is distinct from the others, and each has citizens of its own who owe it

allegiance, and whose rights, within its jurisdiction, it must protect.” The court went on to say,

21

“when called upon should, exercise all the powers it has for the protection of the rights of its

citizens and the people within its jurisdiction.” Ibid.

This is not a right to be found in the equal protection clause, it is not dependent if the

government is protecting one group or not protecting another it comes from privilege of society

over the state of nature. In chapter 2 of his Two Treatise of Government John Locke pg. 74§ 11

of The State of Nature, that “ comes to pass that die magistrate, who by being the magistrate

have the common right of punishing put into his hands, can often, where the public good the

man's not the execution of the law, remit the punishment of criminal offenses by his own

authority, but yet cannot remit the satisfaction do to any private man for the damage he has

received. That he who had suffered the damage is as a right to demand his own name and he

alone can remit.” (Lonang Institute ed. 2005).

Petitioner is aware that damages in a newly declared right will be non-existent. Yet still I

persist as it is my duty as it is ever other member of society to realize the full potential of our

constitution as it relates to our heritage, like all the rights put forth in this petition this one is no

less important.

3.

THE RESULT OF THIS CASE SHOULD GIVE THE COURT PAUSE TO

RECONSIDER. NOT BECAUSE IT WAS WRONGLY REACHED, BUT BECAUSE OF

THE MANIPULATION THE FIFTH CIRCUIT USED TO REACH THEIR OPINION.

Petitioner ask the court to establish new protections for the pro se advocate to prevent

judicial abuse. The facts of the case cannot be denied based on a simple comparison to the Fifth

Circuits opinion and the brief placed in that court, to determine that the court, purposely

22

misstated the brief in order to take a particular course of action in order to oppress the defendant

that caused a fundamental miscarriage ofjustice by stating Welsh did not adequate brief several

issues. CF Appendix A. to Appendix C.

The Fifth Circuit claims that Welsh failed to object to the atypical and significant

hardship or de minimis standard or offer an alternative for the court to consider. See Appendix A

pg. 19-20 Welsh clearly challenged the use of these standards, made comparisons to the claims

upon property that was previously not to be found de minimis by the court; cited to Welsh’s

mental illness and how the conditions of confinement by the professional judgment standard

should determine any loss of liberty; indicated he was being punished, cited this court precedents

on procedural due process, and cited to in Kansas v. Hendricks Supra at 368 that Welsh shares

the same status as the other mental ill class. See Appendix C pg. 18-37 Appeal Brief.

The Fifth Circuit went against its own precedence and United States Supreme court case

law in order to decide against Welsh. Why? This case manifest malevolent injustice to a targeted

class. The Fifth Circuits ruling is unquestionably repugnant to the letter and spirit at the

constitutional core values.

The law comes from the Supreme Court, “it is this court’s responsibility to say what a

statute means, and once the court has spoken, it is the duty of other courts to respect the

understanding uh the governing rule of land Rivers v. Roadway Express, Inc. 511 U. S. 298, 312;

see also Thurston Motor Lines, Inc. v. Jordan Rand Ltd. 460 U.S. 533, 535 “only this court may

overrule one of its precedents.” As it is the court's responsibility beyond all others to “say what

the law is. Marbury v Madison 1 Cranch 137,177. Also, the Fifth Circuit has a “rule of

orderliness, we may not overrule a prior panel this decision absent an interviewing charge in the

23

law, such as a statutory amendment or a decision from either the Supreme Court or our en banc

court.” Thomas v. Dallas City Attorney’s Office 913 F. 3d 464,467-468 (COA5 2019).

Welsh cited numerous cases that explain why Sandin v. Connor supra does not apply,

why he should be considered mentally ill, how de minimis is at least controlled by the $20 rule

of the Seventh Amendment, and how he was entitled to procedural due process. But the

prejudice does not begin or end there, both the Northern District Court, Lubbock division of

Texas and the Fifth Circuit held Welsh to standards a pleading outside Haines v. Kemer 404 U.S.

519, 520-521 and Ericson v. Pardus 551 U.S. 89,94. Moreover, the courts would dismiss the

claim without, “opportunity to discover information that is essential to his opposition.” Anderson

v. Liberty Lobby, Inc. 477 U.S. 242,250, N.5. Especially since, “The need to develop all

relevant facts in the adversary system is both fundamental and comprehensive.” United States v.

Nixon 418 U.S. 683,709.

The Fifth Circuit dismissed other claims relating to the misdiagnosis, the unlawful

restraint, and privacy. The whole case is on a sua sponte dismissal without service. Therefore, in

order to protect the rights of Pro Se litigants who do not understand the appeal and the pleading

process, the Appellant should be allowed to amend his brief before final dismissal for failure to

adequately brief an issue.

z'

24

Prayer

For the foregoing reasons petitioner Lonnie Kade Welsh respectfully praise that the court issue a

writ of Certiorari to review the judgment of the Fifth Circuit Court of Appeals.

Respectfully submittei

Lonnie Kade Welsh

1200 Waylon Jennings

Littlefield, TX 79339

25

r

!

No.

In The United State Supreme Coin!

Lonnie Kade Welsh

VS

State of Texas

Certificate of Compliance

I Lonnie Kade Welsh petitioner and prepare of the petition for writ of certiorari do herby swear under

penalty of perjury that the aforementioned petition is in compliance with word limit of under 9,000 words

and under forty pagers, at 11 points in accordance with Supreme Court Rules 33.2.

Respectfully submitte

Lonnie Kade Welsh

1200 Waylon Jennings

Littlefield, TX 79339

/

26