Petition for Writ of Certiorari — Sheng-Wen Cheng, Petitioner v. P. Grenier, et al.

IN THE

SUPREME COURT OF THE UNITED STATES

FILED

OCT 1 6 2024

OFFICE OF THE CLERK

SUPREME COURT. U.S.

SHENG-WEN CHENG,

PETITIONER,

vs.

P.GRENIER, and UNITED STATES OF AMERICA,

RESPONDENTS ,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR CERTIORARI

L

Sheng-Wen Cheng (Pro Se)

No. 05261-509

Federal Medical Center

PMB 4000

Roche & i e r , Mty* 55903

QUESTIONS PRESENTED FOR REVIEW

1. Should a prisoner's Bivens claim againt a prison

counselor for denial of right to petition be dismissed, v/hen

the District Court at the same time found the prison counselor

denied the prisoner's right to petition?

2. Can the prison counselor's act of violating a

prisoner's constitutional right be deterred from recurring

in the future absent a Bivens claim?

i

LIST OF PARTIES IN COURT BELOW

1. Sheng-Wen Cheng ("Mr. Cheng"), Petitioner.

2. P.Grenier, and United States of America, Respondents.

LIST OF CASES DIRECTLY RELATED TO THIS CASE

1. Sheng-Wen Cheng v. P.Grenier, and United States of America

No.23-CV-00485-WMW-DLM

U.S. District Court for the District of Minnesota

Judgement entered on January 16, 2024.

2. Sheng-Wen Cheng v. P.Grenier, and United States of America

No.23-1796

U.S. Court of Appeals for the Eighth Circuit

Judgement entered on August 21, 2024.

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW

i

LIST OF PARTIES IN COURT BELOW

ii

LIST OF CASES DIRECTLY RELATED TO THIS CASE

ii

TABLE OF AUTHORITIES CITED

iv

OPINIONS AND ORDERS IN CASE

1

JURISDICTIONAL STATEMENT

1

CONSTITUTIONAL PROVISION INVOLVED

2

STATEMENT OF THE CASE

2

EXISTENCE OF JURISDICTION BELOW

5

ARGUMENT FOR ALLOWANCE OF WRIT

5

I. MR.CHENG’S BIVENS CLAIM FOR DENIAL OF

RIGHT TO PETITION IS VALID....................

6

A. Mr. Cheng's Bivens Claim Would Not

Intrude the Functioning of the Prison..

6

B. Special Factors favor the Authorization

of Mr. Cheng's Bivens Claim......................

8

II. ONLY THE BIVENS CLAIM CAN DETER RESPONDENT

GRENIER FROM REPEATING HIS BEHAVIOR............

10

CONCLUSION

13

APPENDIX

14

APPENDIX A

15

APPENDIX B

16

APPENDIX C

17

CERTIFICATE OF SERVICE

18

iii

TABLE OF AUTHORITIES CITED

PAGE(S)

CASES:

Bell v. Hood

327 U.S. 678, 684, 66S. Ct. 773, 90b. Ed. 939 (1946)...12

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics

403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)6,11

Carlson v. Green

446 U.S. 14, 20, 100S. Ct. 1468, 641.. Ed. 2d 15 (1980)..7

Corr. Servs . Corp v. Malesko

534 U.S. 61,66, 122S. Ct. 515, 1511.. Ed.2d 456 (2001)9,10

Egbert v. Boule

596 U.S. 482, 142 S. Ct. 1793, 2131.. Ed. 2d 54 (2022)7,10

FDIC v. Meyer

510 U.S. 471, 114S. Ct. 996, 1271.. Ed. 2d 308 (1994)...10

Hartman v. Moore

547 U.S. 250, 254, n.2, 126 S. Ct. 1695,

164 L. Ed. 2d 441 (2006)............................................

9

Hernandez v. Mesa

140 S. Ct. 735, 206 L. ED. 2d 29 (2020)..............

7

Little v. Bareme

6 U.S. (2 Cranch) 170, 2L. Ed. 243 (1804)..........

12

Marbury v. Madison

511.S. 137, 1 Cranch 137, 163, 21.. Ed. 60 (1803)

11,13

Turner v. Safley

482 U.S. 78, 84-85, 107 S. Ct. 2254, 961.. Ed.2d 64(1982)6

West v. Cabell

153 U.S. 78, 14 S. Ct. 752, 38L. Ed. 643 (1894)

12

Woodford v. Ngo

548 U.S. 81, 93-94, 126 S. Ct. 2378, 165L. Ed.

2d 368 (2006)..................................................................

9

Ziglar v. Abbasi

__ 582 U.S. 120, 131-32, 135, 137 S. Ct. 1843, 198L.

' Ed. 2d 290 (2017)............................................................. 7,8,9,10

iv

OTHER AUTHORITIES:

28IJ.S.C.1915

7

28U.S.0.1915(g)..........

t « • •

28U.S.C.1915A..............

11 * *7

2811.S.0.2679(b)(2)(A)

:« * ,* •10

Act for the Relief of George little, ch.4,6 Stat.63(1807).12

Act of March 2, 179, ch.28, 1 Stat. 723, 724

12

James F. Pfander and Jonathan 1. Junt, Public Wrongs

and Private Bills: Indemnification and Government

Accountability in the Early REpublic, 85 N.Y.U.

1. Rev. 1862, 1932-39 (2010)..............................................

12

Professor James E. Pfander, Constitutional Torts and

the War on Terror (‘'"Oxford 2017), Chapter 1............

12

v

OPINIONS AND ORDERS IN CASE

The opinion and judgement of the United States Court of

Appeals for the Eighth Circuit is reported as Appendix A.

The Opinion and judgement of the United States District

Court for the District of Minnesota is reported as Appendix B.

JURISDICTIONAL STATEMENT

The judgement of the United States Court of Appeals for the

Eighth Circuit (reported as Appendix A), was entered on August 21,

2024. On September 5, 2024, the same Appeals Court denied Mr.

Cheng's Motion to Stay the Mandate, which is reported as

Appendix C.

This petition for certiorari is filed within 90 days of the

Appeals Court's entry of judgement, so that this Court has

jurisdiction to review the judgement of the Eighth Circuit Appeal

Court on petition for certiorari rests by virtue of 28U.S.C.

1254(1).

1

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United States Constitution

provides, in pertinent part:

Congress shall make no law ... prohibiting ... to

petition the governemnt for a redress of grievances.

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

NO person shall ... be deprived of life, liberty

or property, without due process of law-.

• t «

STATEMENT OF THE CASE

While Mr. Cheng was serving his sentence at Federal

Correctional Institution ("FCI") Sandstone, Mr. Cheng's assigned

counselor -Respondent P. Grenier ("Grenier")- was intentionally

thwarting Mr. Cheng's attempts to use the administrative remedy

process ("ARP") within the Federal Bureau of Prisons ("BOP"),

and limited his access to the courts (R.Doc.74,p.2) .

Therefore, with no available means to petition for any

redress caused by Grenier's actions, Mr. Cheng filed a complaint

and a motion for a Temporary Restraining Order ("TRO") and a

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Preliminary Injunction ("PI") at the Federal District Court of

Minnesota (P.Docs.l, and 6-10), seeking to restrain Grenier from

continuing violating his constitutional rights, and to seek

monetary compensations for the harms caused by Grenier.

However, a month after Mr. Cheng filed his complaint, and a

day after Mr. Cheng filed his motion for TPO and PI, Mr. Cheng

V7as transferred to another facility. Weeks later, Mr. Cheng's

In Forma Pauperis application was granted (P. Doc.15). Subsequently,

Mr. Cheng filed an amended complaint with identical claims except

dropping an abuse of power claim (P. Doc.19), as Mr. Cheng found

that the claim is not valid in the State of Minnesota after

regaining access to lav? library at the new facility.

After the Respondents were servedxby the U-S. Marshals,

Respondents requested an enlargement of time and for one deadline

to answer or otherwise respond to Mr. Cheng's amended complaint,

using waiting on Washington D.C. to determine whether Grenier

acted outside his employment as the reason for the delay (P.

Docs.34-38). Then, Mr. Cheng's motion for TPO and PI was denied

because he had been transferred to another facility, which

rendered the motion to be moot (P. Doc.42).

Months later, Respondents, filed the motion to dismiss or in

the alternative summary judgement (P.Doc.48), mainly arguing that

Mr. Cheng's amended complaint should be dismissed because Mr.

Cheng's Bivens claims are not cognizable, and Mr. Cheng failed to

exhaust his ARP (P.Doc.48,p.1-3), which were arguments based on

a

\

questions of lav/ that have no relation to Grenier' s actions.

Aftervzard, the District Court denied the Respondents'

motion for summary judgement for failing to follovz the District

Court's procedure (R.Doc.59). Mr. Cheng then submitted his

opposition to the Respondent's motion to dismiss (R.Doc.63),

and the Respondents filed their reply (R.Doc.66). Hovzever,

in the Respondents' reply brief, they admi'tted and failed to

respond to Mr. Cheng's certain arguments made in his

opposition brief; and thus Mr. Cheng filed a motion to leave to

file a Surreply to highlight those conceded arguments (R.Docs.

69-70), V7hich the District Court granted (R. Dbc,73).

Nevertheless, the District Court granted the Respondents'

motion to dismiss on January 16, 2024, and dismissed Mr. Cheng's

Bivens claim v/ith prejudice. As a result, Mr. Cheng appealed the

District Court's judgement on Feburary 5, 2024 (R.Doc.76).

Hov/ever, on August 21, 2024, the U.S. Court of Appeals for the

Eighth Circuit affirmed the District Court's dismissal vzith

little explanations.

Accordingly, this petition for a vzrit of certiorari follov/s*

EXISTENCE OF JURISDICTION BELOW

The United States District Court for the District of

Minnesota had jurisdiction under 28U.S.C.1331.

The United States District Court's final judgement was

duly appealed to the United States Court of Appeals for the

Eighth Circuit, which had jurisdiction over the appeal under

28U.S.C.1291.

ARGUMENT FOR ALLOWANCE OF WRIT

This Court should review and reverse the decisions made

by lower courts in this case, because both the District Court

and the Eighth Circuit appeals court failed to consider that

there is no other remedy for the present case except for a

Bivens claim.

Most importantly, this Court has never reviewed the

questions presented in this petition, in regards to a

constitutional right to petition Bivens claim, and whether only

a Bivens claim can deter federal employees from future

misconducts. Therefore, the Eighth Circuit's decision, if

not reversed, will render the Constitution to be just a piece

of paper, and will cause future victims in the hands of federal

employees' violations without any redress.

5

I. MR.CHENG'S BIVENS CLAIM FOR DENIAL OF RIGHT TO PETITION

IS VALID.

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), this Court held

that injured party can pursue claims for damages against U.S.

federal employees for conduct disregarding constitutional

protection. Accordingly, because the present case presents a

violation of the constitutional right, allowing the Bivens

claim to proceed would not intrude the functioning of the

prison, and there are no special factors counselling against

the authorizations of a Bivens claim, the lower courts erred in

dismissing Mr. Cheng's Bivens claim for denial of right to

petition.

A. Mr. Cheng's Bivens Claim Would Not Intrude the

Functioning of the Prison.

The lower courts stated that allowing Mr. Cheng's Bivens

claim to proceed v/ould intrude the functioning of the

executive branch (BOP in this case). However, "Prison walls do

not form a barrier seperating prisoners from the protection of

the Constitution", Turner v. Safley, 482 U.S. 78, 84-85, 107

S. Ct. 2254, 96 L. Ed’. 2d 64 (1982). Also, trying a front line

prison counselor's action poses little if any risk of disrupting

an executive or legislative power

6

as it does not involve issues

of national security, international comity, or investigative and

prosecutive functions of the executive branch presented in

Ziglar v. Abbasi, 582 U.S. 120, 131-32, 135, 137 S. Ct. 1843,

198 L. Ed. 2d 290 (2017); Hernandez v. Mesa, 140 S. Ct. 735,

206 L. ED. 2d 29 (2020); and Egbert v. Boule, 596 U.S. 482,

142 S. Ct. 1793, 213 L. Ed. 2d 54 (2022).

Additionally, this Court has found that federal prison

officials do not enjoy such independent status in the

constitutional scheme as to suggest that judicial created

remedies againt them might be inappropriated, and qualified

immunity continues to protect them such that the availability

of a Bivens claim would not overly interfere with their

ability to do their jobs, see Carlson v. Green, 446 U.S. 14,

20, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980), which the

Respondents never dispute (R. Doc*. 66-). _

Moreover, allowing a Bivens claim to proceed in this case

would not impose significant administrative or finoqcial costs

on the BOP for other future similar litigations, because when

a prisoner initiates his or her complaint In Forma Pauperis

-as in most prison litigations- his or her complaint is subjected

to the additional requirements of 28U.S.C.1915 and 1915A, which

include the three-strike rule, see 1915(g), and pre-docket

screening, see 1915A. Thus, if a prisoner's complaint were to [J

be frivolous, the prison officials would not have to litigate

at all.

7

Furthermore, the District Court has already found Grenier

made the ARP unavailable to Mr. Cheng, a denial of Mr. Cheng's

constitutional right to petition (R.Doc.74,p.6). Thus, there

is no risk of disrupting BOP operations as the judicial branch

routinely makes the determination of exhaustion of administrative

remedy at the early phrase of a litigation. Finally, Mr. Cheng

is not using a Bivens claim to reform a prison management or

a prison policy, compare Abbasi, 137 S. Ct. at 1860-61 (Denying

a Bivens remedy when the prisoner challenged a policy).

Accordingly, allowing Mr. Cheng's Bivens claim

denial

of right to petition to proceed would not intrude the functioning

of the prison/BOP.

B. Special Factors Favor the Authorization of Mr. Cheng's

Bivens Claim.

This Court has said that lower courts should hesitate to

extend the Bivens claim into a new context when "legislative

action suggests that Congress does not want a damage remedy",

Abbasi, 582 U.S. at 149. However, unlike statutory rights,

constitutional rights do not stem from Congress. The Bill of

Rights were enacted to protect the interests of the individuals

in the face of the popular will as expressed in legislative

majorities. Thus, there is no reason why the remedies for such

8

I

constitutional rights must come from Congress.

Additionally, even if this Court were to defer to Congress

-which should not- when Congress passed the Prison Litigation

Reform Act ("PLRA") of 1995, its focus V7as on imposing other

gatekeeping requirements to reduce the flov7 of prison

litigations, and was not upon the avaliability of damages

remedies for prison suits, see Woodford v. Ngo, 548 U.S. 81, 93,

94, 126 S. Ct. 2378

165 L. Ed. 2d 368 (2006). Indeed, if the

PLRA were such a clear manifestation of congressional intents

to deny prisoners an implied private right of actions for

money damages, this Court's statements in C.orr. Servs. Corp

v. Malesko, 534 U.S. 61, 66

122 S. Ct. 515, 151 L. Ed. 2d

456 (2001), a post-PLRA decision, that "a federal prisoner in ,a

BOP facility alleging a constitutional deprivation ... may

bring a Bivens claim againt the offending individual officers",

and in Hartman v. Moore, 547 U.S. 250, 254 n.2, 126 S. Ct. 1695,

164 L. Ed. 2d 441 (2006), another post-PLRA decision; that "a

Bivens action is the federal analog to suits brought against

state officials", would not make any sense’.

Most importantly, this Court also said the PLRA exhaustion

requirement would apply to Bivens claim as well, see Abbasi,

137 S. Ct. at 1865. Thus

the very statute that regulates how

1. This Court has found that its authority "to imply a new constitutional tort

, not expressly authorized by statute, is anchored in our general jurisdiction

to decide all cases rising under the constitution, laws, or treaties of the

United States", Malesko, 534 U.S. 61.

9

a Bivens claim can be brought cannot be seen as dictating that

a Bivens claim should not exist at all. Therefore, if anything,

Mr. Cheng's case demonstrates that the Congressional intent

behind the passage of the Pt.RA has been correctly applied.

Finally, the ARP was found to be unavailable to Mr. Cheng

by the District Court already because of Grenier's actions;

thus, there is no alternative relief for Mr. Cheng except than

a Bivens claim. Compare Egbert, 142 S. Ct. at 1806 (the

availability of the BOP ARP forecloses a Bivens claim).

Accordingly, the special factors favor the authorization

of Mr. Cheng's Bivens claim.

II. ONI.Y THE BIVENS Cl AIM CAN DETER RESPONDENT GRENIER FROM

REPEATING HIS BEHAVIOR.

Moreover, Bivens claim offer an effective remedy where

federal employees violate clearly established constitutional

rights. See, e.g., Malesko; FDIC v. Meyer, 510 U.S. 471, 114

S. Ct. 996, 127 1. Ed. 2d 308 (1994). Indeed, this Court stated

that absent a Bivens remedy there will be insufficient

deterrence to prevent federal employees from violating the

Constitution, because a Bivens claim is outside the control of

the executive branch, see Abbasi, 582 U.S. 120.

10

2. Even though the District Court dismissed Mr. Cheng's FTCA claim for another j

reason, Mr. Cheng's FTCA tort claim administrative remedy was also unavaliable to

him due to Grenier's action during the same period (R.Doc.19,p.4-5). Furthermore,

even if the FTCA tort claim administrative remedy were available to Mr. Cheng,

FTCA cannot provide any redress to Mr. Chens']as FTCA bars the United States from

being sued for constitutional violation. See 28U.S.C.2679(b)(2)(A).

The United .States is proud of its constitutional

protections on individual rights. However, the declaration of

those rights in the Bill of Rights and the Amendments is not

sufficient protection of those rights, as many other countries

declare similar protection of individual rights in their

constitution; instead, it is the mechanisms that can enforce

those rights made them meaningful. "The very essence of civil

liberty certainly consists in right of every individual to

claim the protection of the lav;, whenever he receives an injury."

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137

163, 2L. Ed.

60 (1803).

Also, even though an independent judicary's power to

issue' injunctions against federal employees to ensure compliance

is something that can make those declared constitutional rights

real sometimes, in many prison cases -as in Mr. Cheng's

_

situation- the BOP can avoid the injunction simply by

tranferring the prisoner to another facility. Thus, for

victims of government abuse who does not see prosecution of

the abuser, or face imminent repetition of the abuse -as in

|

i-

the present case- it is "damages or nothing." Bivens, 403

U.S. at 410 (1971).

Most importantly, Bivens is not a nev; invention. The c

United States federal courts already have a long history of

3. For example, Article 29 ^1 of the Constitution of the Russian Federation,

Article 35 of the Constitution of the People's Republic of China, and

Article 67 of the Socialist Constitution of the Democratic People's Republic

of (Kpjrea, all provide the right to freedom of speech.

11

providing damages against federal employees who violates

someone's constitutional rights. See, e.g., Bell v. Hood,

327 U.S. 678, 684, 66 S. Ct. 773

v. Cabell

90 L. Ed. 939 (1946); West

153 U.S. 78, 14 S. Ct. 752, 38 L. Ed. 643 (1894).

Furthermore, scholars have pointed at that the roots of Bivens

are far deeper, see Professor James F. Pfander, Constitutional

Torts and the War on Terror (Oxford 2017), Chapter 1, which

reviewed several cases from the early years of Republic in

which federal courts Wird damages against federal employees

for their wrong doings.

In the usual pattern for such cases, Congress would then

enact special legislation to indemnify the federal employees

for the damage award. See, e.g., Little v. Bareme, 6 U.S.

(2 Cranch) 170, 2 L. Ed. 243 (1804); Act for the Relief of

George Little, ch.4,6

Stat. 63 (1807); Act of March 2, 179,

ch. 28, 1 Stat, 723, 724; James F. Pfander and Jonathan

L. Hunt, Public Wrongs and Private Bills: Indemnification and

Government Accountability in the Early Republic, 85 N.Y.U.

L.Rev. 1862, 1932-39 (2010). Therefore

if Congress were to

find the Bivens claim against prison counselors like Grenier

to be unjust, it can passes bills to indemnify Grenier for

the damage awards instead.

Indeed, Chief Justice John Marshall of this Court said

that the government has been emphatically terned a government

of laws, and not of men. It will certainly cease to deserve

12

this high application if the laws furnish no remedy for the

violation of a vested constitutional right. See Madison,

1 Cranch 137. Here, the filing of prison grievance and access

to courts are protected constitutional rights, and the

District Court already found that Grenier made them

unavailable to Mr. Cheng. Nevertheless, Mr. Cheng is currently

being left with no remedy for the injuries he had suffered

that were caused by Grenier; meanwhile, Grenier continues to

repeat his behaviors at FCI Sandstone with no consequences.

Accordingly, only a Bivens claim can deter prison

counselors like Grenier from repeating his behaviori of “denying

a prisoner's right to petition.

CONCLUSION

WHEREFORE, for the reasons set forth herein, Mr.

Cheng respectfully requests that this Court grants

this Petition for Certiorari.

Dated: Rochester, Minnesota

\Vr of

, 2024

Respectfully Submitted,

Sheng-Wen Chehf ----- -«=s

No. 05261-509

Federal Medical Center

PMB 4000

Rochester, MN, 55903

13