Opposition Brief — Wilson v. Yaklich

A

Supreme Court, U.S.

FILED

Case No. 98-715 ; DEC 30

1998

| OFFICE OF THE GLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term 1998

KENNETH J. WILSON

Petitioner

Vv.

LEWIS YAKLICH, MARY SANFORD, et ai.

and the UNITED STATES OF AMERICA

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF THE OHIO RESPONDENTS

IN OPPOSITION TO CERTIORARI

BETTY D. MONTGOMERY

Attorney General

STUART W. HARRIS

Assistant Attorney General

Counsel of Record

TODD R. MARTI

Assistant Attorney General

Corrections Litigation Section

140 E. Town Street, 14" Floor

Columbus, Ohio 43215-6001

(614) 644-7233

Counsel for the Ohio Respondents

wa vee

Seeger

i

TABLE OF CONTENTS

PAGE

FA Ge AT re Fas he Asics Gs ii

SRE PRL RCPIEIE ONE, GO RENE CPR fink cns ccs cacsantncasasantuctvads Ga l

REASONS FOR DENYING THE WRIT .......................0..6.. 3

L. The Petitioner’s Equal Protection Issues

Have Been Conclusively Resolved..................0...0006. 3

Il. The Petitioner’s Retroactivity Issues Are

Increasingly Unworthy of Review...........................6. 4

Ill. The Petitioner’s Eighth Amendment Issues

Have Either Been Resolved by Subsequent

Legislation of Were Not Raised Below...................... 5

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ii

TABLE OF AUTHORITIES

FEDERAL CASES

Abdul-Wadood v. Nathan,

019361008 fF Ce WW ..n aa S

Adepegba v. Hammons,

a 46 ee Ce TO i ica

Boddie v. Connecticut,

eR RR Pe Fe | 5 3: SER mee erie omer e eickete ge Mie eR SOT

Green v. Nottingham,

SOS SEGIS TIE De TO a

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

Pe Rite EE IEE EBs. cosas kcsideiiviinsdctsceasiaeasdededeveghasctenseaiasnaoels

Keene v. Pennsylvania Bd. of Probation & Parole,

ee IG Oe ic Se

Landgraf v. USI Film Products,

Ge See Ce niki ken euncsnnensataunaeaene

Lewis v. Casey,

PE ITE, Re TNR dics jo ccskncdis ssives tacgeenanenee ee

M.L.B. v. S.L.T.,

ie gtk Me Ly ROR ememnteregmnnn more yucatan ie reenter

Tierney v. Kupers,

128 F.3d 1310 (9" Cir. 1997)

eee ee eee eee ee eee eee eee eee

Turner v. Safley,

SR od sp BR RRRNR ape re phonnprnea ny mame ee erert neon inher aMaes 4

United States v. Kras,

UE ioc oo oo sc ananh cis tnd ap sk cco 4

Williamson v. Lee Optical Co.,

RR TE 8g 8 7. SR Al aeRO ep Om ERE EN RE are POET 4

DOCKETED CASES

Wilson v. Sanford,

Cn as, SR OE 1,2

Wilson v. Yaklich,

Cane a 96-900 Or 8 i 1,2,3

FEDERAL STATUTES

Ee TEI i rhistsicie ods esciasineatiaanns passim

A es ae A ios tess anata dcr Sdinanrcintcanineiacniaih es 5

Prison Litigation Reform Act, Pub. No. 104-134,

110 Stat. 132] (April 26, 1996)......................0c00000 1,2,4,5

ae: reabe

Sesto es te

hy

STATEMENT OF THE CASE

This petition presents questions as to the extent of

injury necessary to sustain a “failure to protect” claim under

the Eighth Amendment to the United States Constitution and

the applicability and constitutionality of 28 U.S.C. §1915(g),

enacted as part of the Prison Litigation Reform Act

(“PLRA”), Pub. No. 104-134, 110 Stat. 1321 (April 26,

1996).

The Petitioner is an inmate in the custody of the Ohio

Department of Rehabilitation and Correction (““ODRC”). He

had pursued more than 70 meritless civil cases and appeals in

the federal courts at the time of the decision below. All of the

Respondents, except the United States of America, are

employees of ODRC. This petition arises out of the Sixth

Circuit’s consolidated disposition of two of the Petitioner’s

most recent federal appeals, the cases of Wilson v. Yaklich,

Case No. 96-3023 (6" Cir.) and Wilson v. Sanford, Case No.

96-4323 (6" Cir.).

The Yaklich case was commenced in the district court

by the Petitioner, pro se, prior to the enactment of the PLRA.

It alleged, inter alia, that while he was incarcerated at the

Mansfield Correctional Institution (“ManCI’), the Ohio

Respondents were insufficiently sensitive to his fear of assault

from other inmates and hence violated the Eighth

Amendment. Most notably, it did not allege that he was ever

assaulted or physically harmed by the inmates he feared. That

complaint sought only damages and did not request injunctive

relief. The district court reviewed the Petitioner’s complaint,

denied him permission to proceed in forma pauperis (“IFP”)

and dismissed his case without prejudice.

After the passage of the PLRA, the Petitioner

appealed to the Sixth Circuit. The Respondents moved,

pursuant to the newly enacted provisions of 28 U.S.C.

§1915(g), to prohibit the Petitioner from pursuing the appeal

2

IFP. The Sixth Circuit appointed counsel for the Petitioner,

and both the merits of his appeal and the applicability and

constitutionality of §1915(g) were ably briefed by appointed

counsel. His counsel argued, among other things, that

§1915(g) could not be applied to his appeal because the case

was Originally commenced before its enactment and that the

statute violates equal protection principles.

The Sanford case was commenced after the passage of

the PLRA. It was the consolidated disposition of seven

separate civil cases which the Petitioner sought to pursue IFP.

Because of his long history of filing meritless cases, the

district court invoked §1915(g) and denied IFP status. The

Petitioner then filed a pro se appeal and incorporated by _

reference the arguments regarding §1915(g) made by his

counsel in Yaklich.

The Yaklich and Sanford cases were consolidated for

argument and the Petitioner’s counsel in Yaklich argued on

his behalf in both cases.

The Sixth Circuit issued a single opinion resolving

both Yaklich and Sanford. It held that Petitioner’s Eighth

Amendment claims in Yaklich were properly found to be

frivolous because he had not alleged any injury and hence the

objective element of that claim. (A13-A17). It also held that

the district court presiding over Sanford did not violate

retroactivity principles in relying upon the Petitioner’s pre-

enactment dismissals to invoke §1915(g) because that statute

is strictly procedural and does not significantly change his

rights and duties. (A20-A22). It held that §1915(g) did not

violate the Petitioner’s right of access to the courts because

he was still free to seek relief in state fora. In light of that

decision, the Sixth Circuit further held that §1915(g) did

abridge fundamental rights or rely upon suspect classifications

and hence was subject to rational basis review for purposes of

the Petitioner’s Equal Protection challenge. The court found

3

that the need to deal with the onslaught of frivolous prisoner

petitions provided a rational basis for the statute and hence

upheld its constitutionality. (A22-A25).

REASONS FOR DENYING THE WRIT

Petitioner raises three clusters of issues. The first

concerns the constitutionality of §1915(g) under Equal

Protection principles. The second concerns the statute’s

retroactivity. The third concerns his underlying Eighth

Amendment claim in Yaklich. All of those issues have either

been conclusively resolved or are otherwise inappropriate for

review.

I. The Petitioner’s Equal Protection Issues

Have Been Conclusively Resolved.

Ihe Petitioner's first issue concerns the standard of

review for restrictions that allegedly limit a prisoner’s access

to the courts. More specifically, he argues that his right to

access the courts was “fundamental”, that §1915(g) infringes

upon that right and hence that §1915(g) should be subject to

strict scrutiny. However, there are factual and legal problems

with that issue.

Factually, the Sixth Circuit held that under Ohio law

the Petitioner had full access to Ohio courts to assert the

types of claims he raised in the district courts below. Hence,

because there was no infringement, this issue is hypothetical.

Legally, three distinct lines of precedent have already

determined the standard of review. As a general matter, this

Court has repeatedly held that statutes requiring indigents to

pay filing “ees are subject to the rational basis review applied

below when, as here, they do not interfere with cases

concerning criminal or familial matters and do not preclude

resort to alternate fora. M.L.B. v. S.L.7T., 519 U.S. 102

4

(1996); United States v. Kras, 409 U.S. 434 (1973); Boddie

v. Connecticut, 401 U.S. 371 (1971). Drawing the matter

into sharper focus, this Court has held the government need

only “demonstrate a rational basis” to defeat a prisoner’s

equal protection attack on a challenged restriction. Jones v.

North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119,

134 (1977). Bringing the matter into the highest possible

resolution, Lewis v. Casey, 518 U.S. 343 (1996), expressly

held that restrictions on prisoners’ ability to access the courts

are reviewed under the rational basis test enunciated in 7urner

v. Safley, 482 U.S. 78 (1987). Hence this issue has been

settled.

The second issue is in this cluster is whether §1915(g)

violates equal protection principles because it does not

address all types of frivolous litigation. However, it has been

settled for more than half a century that a legislature does not

violate equal protection guarantees because it only addresses

a portion of the problems confronting it. Williamson v. Lee

Optical Co., 348 U.S. 483, 489 (1955). Once again, review is

contraindicated because the issue has been conclusively

resolved.

Il. The Petitioner’s Retroactivity Issues Are

Increasingly Unworthy of Review.

The Petitioner’s third issue is the propriety of

considering pre-PLRA dismissals in the application of

§1915(g) under the retroactivity principles established by

Landgraf v. USI Film Products, 511 U.S. 244 (1994). There

are two reasons why it does not merit review. First, the

decision below is consistent with that of every other circuit to

consider the issue and hence the conflict usually required to

justify review of such a statutory question is not present.

Green v. Nottingham, 90 F.3d 415, 419-420 (10" Cir. 1996);

Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7" Cir.

1996); Adepegbha v. Hammons, 103 F.3d 383, 385-386 (5"

5

Cir. 1996); Keene v. Pennsylvania Bd. of Probation &

Parole, 128 F.3d 143, 144-145 (3" Cir. 1997); Tierney v.

Kupers, 128 F.3d 1310, 1311 (9" Cir. 1997). Second, this

retroactivity issue has, and will, become increasingly irrelevant

as time passes since the enactment of §1915(g).

lll. The Petitioner’s Eighth Amendment

Issues Have Either Been Resolved by

Subsequent Legislation or Were Not

Raised Below.

The Petitioner’s fourth issue, whether a prisoner may

recover damages on an Eighth Amendment conditions of

confinement ciaim based upon emotional/psychological injury

unaccompanied by physical harm, has been resolved by the

PLRA. That legislation enacted 42 U.S.C. §1997e(e), which

provides that no recovery is possible in such a situation

Consequently, it is exceedingly unlikely that this issue will

arise again.

The Petitioner’s final issue concerns the availability of

injunctive relief in connection with his Eighth Amendment

claim. However, that issue is not properly before the Court

because it was not raised below. Presumably because he had

already been transferred form the situs of the perceived threat

when he filed in the district court, Petitioner’s complaint did

not seek injunctive relief. Instead, he only sought damages.

Since he did not seek injunctive relief at the outset of this

case, the Petitioner cannot raise a constitutional claim on the

matter at this late date.

6

CONCLUSION

The Ohio Respondents ask that this Court deny

certiorari in these cases.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General

STUART W. HARRIS

Assistant Attorney General

Counsel of Record

TODD R. MARTI

Assistant Attorney General

Corrections Litigation Section

140 E. Town Street, 14" Floor

Columbus, Ohio 43215-6001

(614) 644-7233

Caunsel for the Ohio Respondeuts