Petition for Writ of Certiorari — Smith v. McNeil

Supreme Court, U.S.

\ FILED

10-299 9 MAY -5

| Lo 0-399 MAY -5 2010

OFFICE OF THE CLERK

IN THE

SUPREME COURT

OF THE

UNITED STATES

GLENN SMITH-Petitioner

VS.

WALTER A. MCNEIL, Sec., Of Department of

Corrections, STEPHEN W. KEGERREIS, SGT. B.

CAMPBELL, CPO N. RIOS AND

DARRYL COLLINS-Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Glenn Smith, pro se

Martin Correctional Institution

1150 S.W. Allapattah Road

Indiantown, Florida 34956-4397

QUESTIONS PRESENTED

Pursuant to Sandin v. Connor, 515

U.S. 473, 484, 115 S. Ct., 2293, 2300 (1995),

did Petitioner sufficiently evidence “a

typical and significant hardship” condition

of both administrative and disciplinary

confinement in Florida's prison, so that this

Court's due process standards decisions in

regard to subjecting prisoners to “restrictive

conditions of confinement.” See Wilkinson

v. Austin, 545 U.S. 209, 223, 125 S. Ct. 2384,

2394, 162 L.Ed.2d 174 (2005). Apply and/or

did Petitioner's additionally evidenced

particular conditions of = disciplinary

confinement require due process, ~ in

regard, to a prison disciplinary action

taken against the Petitioner on 12/20/03?

Did Petitioner sufficiently

plead/evidence a retaliatory disciplinary

action claim?

Is the Florida Depariment = of

Corrections, “Disobeying... any order."

Rule 33-601.314 § 6-1, Florida Administrative

Code, disciplinary rule constitutionally valid

under a Turner v. Safley, 482 U.S. 78, 89-90,

107 S. Ct. 2254, 2261-62, 96 L.Ed.2d 64

(1987) analysis ¢

TABLE OF CONTENTS

CPF Gare MURR GNP TY fei insnksanavindics ts nencuegiuinusbceseres

SPP OMIT eri cionivitcavustondeiesoaa

CONSTITUTIONAL AND STATUTORY

PS Vr te OW te RUE ssc viivnsscacatvcancasacescanaes 3

SIATEMEN OOF THE CAGE cn ncccsceaseisissrviccins weit

REASONS FOR GRANTING THE WRIT........... :

CPU Nasik OAs chick tyes oociseccdadcaseiseucensuuactonns 38

INDEX TO APPENDICES

APPENDIX A

Opinion in Smith v. Secretary of Fla. Dept.

of Cor, #09-11423(11' Cir. December 21,

2009)

APPENDIX B

Order in Smith v. Secretary of Fla. Dept. of

Cor., #06-14361Graham/White-U.S.Dist.

(S.D.Fla. suly 30, 2008)

Magistrate Report filed June 25, 2007

APPENDIX C

Petition for rehearing & rehearing En Banc

filed 1/4/10 in Smith, #09-11423

Supplement to rehearing & rehearing En

Banc filed 1/29/10

APPENDIX D

On Petition(s) for rehearing & rehearing En

Banc filed 2/8/10 in Smith, #09-11423

APPENDIX E

Affidavit of Atypicality, Complaint

Appendix A, Smith, # 06-14361-CIV-

Graham/White

APPENDIX F

Handwritten Complaint under the Civil

Rights Act, 42 U.S.C. § 1983

(less Gopendixes) incorporated by

reference into District Court's form

A complaint under the Civil Rights Act, 42

U.S.C. § 1983 filed 12/18/06 in Smith, # 06-

14361-CIV-Graham/White

vi

TABLE OF AUTHORITIES CITED

Cases: Page:

a ccaurvuaedaverees 34

156 F.3d 192 (D.C. Cir. 1998)

BONNET V. CHY OF PHICIEIC, ....ccccssccccrseseess 10

661 F.2d 1206 (11'" Cir. 1981)

ee es ecsubousaccaenscovac sass 33

A03-1663 (Minn. July 28, 2005)

EN OMe soi si sca pactitcsnccechsdansscsen 21

379 F.3d 1278 (11'" Cir. 2004)

I I a ccenkgaasndecahtidissanioauebnicncss 34

121 F.3d 222 (5! cir. 1997)

vacated in part on jurisdictional grounds

154 F.3d 186 (5'" Cir. 1998) (er banc)

cert. denied 525 U.S. 1151, 119 S.Ct. 1052,

142 L.Ed.2d 58 (1999)

ee cia deleiekdnsoubees 21

15 F.3d 1463 (9th Cir. 1993)

ee oe BS RE: a, re 18

523 U.S. 574, 118 §.Ct. 1584,

140 L.Ed.2d 759 (1998)

NE 0 os cccccaunsunasinveesis We

598 F.Supp. 607 (D.R.I. 1984)

vii

RT lett en 33

905 F.2d 1147 (8!'» Cir. 1990)

Ce I ccs ings ES DLL 36

232 F.Supp. 2d 1171 (D. Or. 2002)

GSAMOMM V. BOUGTHUTIGIN, cccccsccssccssscccccccossees 33

772 F.3d 441 (8'% Cir. 1985)

PMGsaNn V. U.5. GODT. OF LOOM, ccsiicrcvececessse 22

400 F.3d 1001 (7'» Cir. 2003)

ee ss ewubeieddadiesel 12

83 F.3d 1083 (9! Cir. 1986)

Liftlefield v. Forney Ind. Schoo! Dist.,........ 19

268 F.3d 275 (5!" Cir. 2001)

ee sesudivieeenss 26

610 F.2d 16 (15! Cir. 1979)

Millhouse v. Carlson, .............. ee ee 24

652 F.2d 371 (3d Cir. 1981)

Mt. Healthy School Dist. Board

of Education v. Doyle, ................+. 7,23, 26

424 U.S. 274, 97 S.Ct. 568,

50 L.Ed. 471 (1977)

Cy YF, FI csicicercesincscsssensacsonss 26

910 F.2d 576 (8'" Cir. 1990)

Pn 0 i aus cdacecaeushab abun 10

642 F.2d 865 (5!) Cir. Unit B April 17, 1981)

ROAGETS V. SINGIETATY, 2... ..cccececeeeceeceeeceeeees 13

142 F3d 1252 (11 Cir. 1998)

Sandin v. Conner, ........... ii, 6, 7,9, 11-13, 15

515 US. 473, 118 $.Cl. 2293.

132 L.Ed.2d 418 (1995)

Schroeder V. MADEIIOS, ........ccccecececeeesceeeees 35

823 F.Supp. 8906 (D. Hawaii 1993)

rev'd 29 F.3d 634 (9'" Cir. 1994)

SOCIO WAI, oevicsSereesctesesarctsttasenee. 12

116 F.3d 47 (2d Cir. 1997)

SOT OG io cacesacsatacsasix ae 26

899 F.2d 940 (10! Cir. 1990)

Smith v. Secretary,

Florida Dept. Of COM, ..............eee v, 5,6, 14

06-14361-CIV-GRAHAM/WHITE

$.D. Fla. July 30, 2007)

Smith v. Secretary,

Florida Dept. of Cor., ...7, 10, 15, 17, 25, 3)

09-11423

(11 Cir. December 21, 2009)

TUNTIOT V. SOTO o acccncnenscnsis 7, 24,29, 31, are

482 U.S. 72, 107 S.Ct. 2254,

96 L.Ed.2d 64 (1987)

WORCHO? V; FOTIIGIE, sicdéccciectocttcssnienceene 21

766 F.Supp. 1529 (E.D. Cal. 1991)

PTEPITIOIID We POITTIOT, ...ccccccoccoccccscccececccceess 34

183 F.3d 208 (2d Cir. 1999)

ME, cc cscsssccsnccovescoessescsenscconess 20

560 F.Supp. 2d 691 (N.D. Ind. 2008)

WiIkINSON V. AUSTEN, ......ccccceceeeee o, 0, 12, 13

545 U.S. 209, 125 S.Cl. 2384,

162 L.Ed.2d 174 (2005)

Williams V. NIX, ...ccccceceees oo SC ee,

1 F.3d 712 (9' Cir. 1993)

Wolff v. MCDONNEI, .........cccccecseeees jood at toe 1]

418 U.S. 5390, 94 S.Ct. 2963,

41 L.Ed.2d 935 (1974)

Ee 27

60 F.3d 1161 (5' Cir. 1995)

Statutes and Rules

Title 28 U.S.C. § 1915 (e)(2)(B) (ili) oo... 6

ee 5

Fla. Admin. Code

ee ccuusovseccvocussccscece 22

Rule 33-601.314 § 6-1 cecccsceccsecsesseseeees 4-6, 20

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.

OPINION BELOW

The opinion of the United States

Court of Appeals at Appendix A to the

petition and is unpublished.

The order of the United States District

Court appears at Appendix B and is

unpublished.

JURISDICTION

The date on which the United State

Court of Appeals decided my case was

12/21/10.

A timely petition for rehearing was

denied by the Court of Appeals on 1/4/10

Appendix C, and a copy of the order

denying rehearing on 2/8/10 appears al

Appenaix D.

Ine jurisdiction of this Court is

invoked under 28 U.S.C. §& 1254(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States Firs!

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 of the right of people peaceably

lio)§60rassemble, and to petition the

government for redress of grievances.

Constitution of the United States Eighth

Amendment:

Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and

Unusual punishment imposed.

Constitution of the United States

Fourteenth Amendment:

section |. .... 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

es

any person of life, liberly, or property

without due process of law; not deny to

any person within its jurisdiction the equal

protection of the laws.

Florida Administrative Code Rule = 33-

601.314 § 6-1

33-601.314 Rules of Prohibited

Conduct and Penalties for Infractions

6-1 Disobeying verbal or written

order, any order given to an inmate, or

inmates by a staff member or auihorized

person. 30 DC + 60 GI

STATEMENT OF THE CASE

Petitioner filed a complaint under

the Civil Rights Act 42 U.S.C. § 1983 form

incorporated by reference a handwritten

verified Complaint under the Civil Rights

Act U.S.C. § 1983 (Complaint) with

appendix demonstrating on 12/18/06

complaining of and evidencing the

constitutional invalidity of a fabricated

pretextual reprisal Florida Department of

Corrections (FDC), disciplinary report issued

on 12/20/03. (Or) Smith v. Secretary of Fla.

Dept. of Cor., #06-14361Graham/White-

U.S.District Court; (S.D. Fla. 7/30/08)

(Magistrate Report filed 6/25/07). See

Complaint (less appendix documentation),

Appendix F. Petitioner's Complaint raised

and evidenced First Amendment

retaliatory disciplinary action, pp. 3-7, 10,

and referenced appendices; substantive

due process constitutional violation by the

DOC rules under which the Petitioner was

infracted, Fla. Admin. Code Rule 33-

601.314 § 6-1, pp. 10a-12; and procedural

due process violation in the FDC

disciplinary proceeding, pp. 12-18, and

referenced appendixes.

The District Court Order decided that

Petitioner's case was “due to be dismissed

for failure to state a claim upon which relief

may be granted pursuant to 28 U.S.C. §

1915 (e) (2) (B) (iii)." Smith, #06-14361-civ-

Graham/White, 2-3, Appendix B. The

Order, id. specifically addressed the

Petitioner's retaliatory disciplinary action

claim deciding that “the disciplinary

actions herein arose out of Mr. Smith's

failure to comply with a direct order, and

this, as discussed in the Magistrate Judge's

(Report). Appendix B, p. 5, which had also

recommended that Petifioner had no

procedural due process claim because

Petitioner had established no _ liberty

interest following Sandin, report, p. 9, see

infra, citing Report, p.13-14, and that the

FDC Rule was constitutional, Report, pp. 9-

10, finding that “There is no question that a

rule requiring inmates to comply with

verbal and written orders of prison officials

is essential to operation of the State's

prison and is absolutely necessary to

preserve internal order and discipline and

to maintain Institutional security.”

Petitioner timely appealed and

briefed the District Court's errors of fact

and law; in dismissing Petitioner's Case as

to his First Amendment retaliation ciaim by

applying a standard inconsistent with Mf.

Healthy, substantive due process rule;

constitutionally challenge by misanalyzing

the rule under Turner, and procedural due

process in the discipiinary proceeding

violations claims because Petitioner had

demonstrated a liberty interest in being

free from restrictive Confinement pursuant

to Sandin.

The Eleventh Circuit's opinion in

Smith v. Secretary of Fla. Dept. of Cor.,

#09-11423 (11th Cir. December 21, 2009),

Appendix A, affirmed the dismissal of

Petitioner's action by the District Court,

addressing each of Petitioner's issues as

cited, infra, pp. 10, 17-18, 31.

Petitioner timely filed a Petition for

Rehearing & Rehearing En Banc, Appendix

C, which was denied by an order filed

2/8/10, Appendix D.

REASONS FOR GRANTING THE WRIT

Pursuant to Sandin v. Connor, 515

U.S. 473, 484, 115 S. Ct. 2293, 2300 (1995).

Did Petitioner sufficiently evidence “a

typical and significant hardship” conditions

of both administrative and disciplinary

confinement in Florida's prison so that this

Court's due process standards decisions in

regard to subjecting prisoners’ to

“restrictive conditions of confinement." See

Wilkinson v. Austin, 545 U.S. 209, 223, 125 S.

Ct. 2384, 2394, 162 L.Ed.2d 174 (2005),

apply and/or did Petitioner's additionally

evidenced particular conditions’ of

disciplinary confinement require due

process in regard to a prison disciplinary

action taken against the Petitioner on

12/20/03?

This Court has recognized that “in

Sandin's,.wake, the Court of Appeals have

not reached consistent conclusions for

identifying the baseline from which to

measure what is atypical and significant in

any particular prison system.” Wilkinson v.

Austin, 545 U.S. at 273, 125 S. Ct. at 2394.

In the case below, Smith v. Secretary

of Fla. Dept. of Cor., #09-11423 (11 Cir.

December 21, 2009), the Court found that

“although Smith asserted a number of

ways in which disciplinary confinement

differs from being in general population, he

also conceded that the conditions in

disciplinary confinement essentially were

the same as_ the conditions — in

administrative confinement. According,

we concluded that Smith did not have a

liberty interest in being free from

disciplinary confinement, and the District

Court correctly found that he failed to

state a due process claim." Appendix A.

This decision evidently abrogated

the Circuit Court's prior controlling

precedent in Parker v. Cook, 642 F.2d 865,

10

875 (S' Cir. Unit B April 17, 1981}).!' Which,

while decided on a pre-Sandin, standard,

still relevantly hold that, "We think it self-

evident that the State of Florida cannot by

merely attaching the label of

administrative segregation to its actions,

transform what is in substance disciplinary

action subject to due process restrictions

into. administrative action outside the

purview of the due process clause.” After

noting, that the District Court had

“(rleason[ed]; that the consequences of

administrative segregation, were virtually

identical; to the consequences of

disciplinary segregation." And “found that

the rule of Wolff v. McDonnell, 418 U.S. 539,

94S. Ct., 2963 (1974)...applies to inmates in

administrative segregation.” Where

' See Bonner v. City of Pritchard, 661 F.2d 1206, 1207

(11! Cir. 1981) (“We hold that decisions of the

United States Court of Appeals for the Fifth

Circuit...as that Court existed on September, 1981

handed down by that Court prior to the close of

business on that date, shall be binding as

precedent in the Eleventh Circuit for this Court....")

Petitioner plea and evidenced, through an

affidavit of atypicality, Appendix E, the

“virtually identical” conditions of

administrative and disciplinary

confinement in Florida at the time of the

disciplinary action taken against the

Petitioner at issue in his civil rights

complaint, Appendix F, to demonstrate

that in Florida 1) the proper Sandin analysis

to “restrictive conditions of confinement,”

Wilkinson, 545 U.S. at 223, 125 S. Ct. at 2394,

was comparing the conditions’ of

administrative and disciplinary

confinement to open-population.? 2) Any

time in Florida's confinement was an

“atypical and significant hardship.” Sandin,

515 U.S. at 484, 115 S. Ct. at 2300; under the

totality of conditions consideration? and

2 Keenan v. Hall, 83 F.3d 1083, 1089 (9'" Cir. 1986)

(“the Sandin, Court seems to suggest that a major

difference between the conditions for the general

population and the segregated population triggers

a right to a hearing.)

3 Cf. Wilkinson, 545 US., at 224, 125 S. Ct., at

2395("While any of these conditions standing

alone[in super maximum prison] might not be

12

3) any anticipated reliance on Rodgers v.

Singletary, 142 F.3d 1252-1253 (11 Cir.

1998)-finding that “approximately two

months" “in administrative confinement” at

"South Florida Reception Center in 1993"

did “not show[ ]...depriv[ation] of a

constitutionally protected liberty interest as

defined by Sandin, “would be misplaced

where the Rodgers, opinion did not show

consideration of any conditions of or the

totality of conditions that Petitioner pled.

Ultimately, the District Court in Petitioner's

case below made merely the conclusory

finding that “Plaintiff's 30 days in isolation

was not an excessive, atypical, or

significant hardship that would implicate

the Due Process Clause. See Sandin...,

Rodgers...142 F.3d...1253..." Report of

sufficient to create a liberty interest, taken together

thy impose atypical and significant hardship in a

correctional context."); Sealey v. Gilftner, 116 F.3d

47, 52 (2°94 Cir. 1997)(“in a series of decisions... we

have indicated the deniability of fact-finding

before determining whether a prisoner has a liberty

interest in remaining free from segregated

confinement after Sandin."

Magistrate Judge, 9, “ratified, affirmed

and approved in its entirety.” Smith, # 06-

14361-CIV-Graham/White, see Appendix B.

In regard to the DR of 12/20/03,

Petitioner pled in addition to the typicality

established by FDC rule and/or practice-

atypical and significant hardship

conditions of administrative and

disciplinary confinement in Florida prisons

Affidavit, see Appendix E, the personal

context of Petitioner's total confinement of

6 days administrative confinernent (A/C)

followed by 118 ~ days _— disciplinary

confinement (D/C) because of five(5)

successive fabricated pretextual reprisal

disciplinary reports, including the 12/20/03

disciplinary report and the debilitating,

unconstitutional cold to which Petitioner

was exposed.48 which — precipitated

Petitioner's conflict with prison officials

4 See Keenan, 83 F.3d. at 1089("We suggest that if

[the District Court] finds conditions in IMU [Intensive

management Unit] that violate the Eighth

Amendment, the transfer to IMU would impose

‘atypical and significant hardship'")

resulfing in the 12/20/07 DR, see Complaint,

Appendix F pp. 3-9. The opinion in Smith, #

09-11423, thus appears to omit

consideration of many of the facts that

form “the touchstone of the {[{Sandin]

inquiring..., the nature of thfe] conditions

fof confinement] themselves.", Wilkinson,

545 U.S. at 223, 1255. Ct. at 2394.

This Court should also consider the

argument that a demonstration of

retaliation in a prison context alone meets

the “atypical and _ significant hardship”

Sandin, liberty interest standard. See

question presented, supra, p. 16.

This Court should standardize the

methodology for making a Sandin, liberty

interest determination to which due

process applies in determining — that

Florida's prison administrative and

disciplinary commitment require’ the

procedural due process prescribed by this

Court and that Petitioner was due the due

process required for prison disciplinary

1S

;

{)/

4.4 £4Vij

Did Petitioner sufficiently

plead/evidence a retaliatory disciplinary

action claim?

In Smith, # O9-11423, in regard to

Petitioner's claim of retaliatory prison

disciplinary action, Complaint, p.10,

Appendix F, the Court's finding that:

Accepting the allegations of the

complaint as true, prison official

issued Smith a= disciplinary report

because he refused to obey an

order to uncover his air vent, which

he had covered to block cold air

from coming out of if. Thus, the

allegations of the complaint

established that prison officials issued

the report because he failed to

comply with an order not because

he engaged in First Amendment

expression. Accordingly, we

conclude that there was no causal

\7

connection befween any protected

expression and the disciplinary

report.

Opinion, p. 4, Appendix A, Not only

ignores the “‘Specific non-conclusory

factual allegations' that established

improper motive causing cognizable injury,

“Crawford-El, v. Britton, 523 U.S. 574, 598,

118 S.Ct. 1584, 1596 1597, 140 L.Ed.2d 759

(1998), Petitioner evidenced the context of

five successive fabricated pretextual

reprisal disciplinary reports (DRs) resulting in

six days AC followed by 118 eighteen day

DC, see Complaint, p. 6, Appendix F.

Apparently precipitated by Respondent

Kegerreis, but also the specific immediate

context of the 12/20/03 DR which was a

protest of the unconstitutionally cold

conditions of confinement,> see

The First Amendment protects not only

verbal, and written expression buf also

symbols and conduct that constitute

“symbolic speech." See _ Tinker v. Des

Complaint, pp. 6-8, Appendix F. While the

DR stated that Petitioner “refused to

comply” with “orders to remove paper out

of vent,” Complaint Appendix G,

Petitioner's evidence is that in response to

“a direct order to uncover the vent"

Petitioner responded “I will as soon as the

heat is turned on" Compliant, p. 7,

Appendix F. No reasonable inference,

even in a life most favorable to the

respondents can be =made_= from

Petitioner's facts, which could resulf in a

conclusion that Petitioner “refused to obey

order.” Opinion, p. 4, Appendix A. In fact,

Petitioner's Complaint, p. 7, Appendix F,

Moines, Indep. Comty. Schoo! Dist., 393 U.S.

503, 505-506, 89 S.Ct. 233, 21 L.Ed.2d 731

(1969). .... In evaluating whether particular

conduct possesses “sufficient

communications elements" to implicate First

Amendment protections, courts must ask

whether “[a]n intent to convey a

particularized message would be

understood by those who viewed it." ld.

[Texas v. Johnson, 491 U.S. 397, 404, 109,

S.Ct. 2533, 105, L.Ed.2d 342 (1989)]....

Littlefield v. Forney Independent School Dist., 268

F.3d. 275, 282 (5! Cir. 2001).

goes on to evidence that “a while later the

heat was turned on p[etitioner)

immediately removed the paper” and that

this was witnessed. Thus, the facts of the

Complaint establish that the Petitioner was

disciplined simply for his oral and symbolic

complaints on conditions of confinement.

The Opinion also completely ignores

Petitioner's pleading, Compliant, pp. 13-14,

Appendix F, that the “order to uncover his

vent" was arbitrary and illegal where if did

Indeed, a prisoner can

sufficiently state a claim for relief

when he alleges that prison officials

issued base less disciplinary tickets

against him in retaliation for pursuit

of administrative remedies.

Lekas v. Briley, 405 F.3d 602, 614 (7th Cir.

2005) {internal citations and quotation

omitted). Oral gnevances are protected the

same as written grievances. See Pearson v.

Wellborn, 471 F.3d. 732, 741] (7' Cir. 2006)

(“We are also unconvinced that the form of

expression-i.e., written or oral-dictates

whether constitutional protection

atlaches.”). ....

Watkins v. Kasper, 560 Fed. Supp. 2d 691, 694 (N.D.

Ind. 2008).

20

not implement any notice FDC rule or

procedure,’ and in context, deliberately

exposed the Petitioner to unconstitutional

conditions of confinement of a

debilitatingly cold cell,8 Complaint, pp. 6-8,

Appendix F, exacerbated by the forced

? See Connery v. Sokai, 15 F.3d 1463, 1468 n.8 (9th

Cir. 1993) (finding that “under the due process

clause" the court must consider whether the

inmate may be punished “for violating the

underlying rule" when given a misconduct report

for “refusing to obey an order.")

8 See Chandler v. Crosby, 379 F.3d 1278, 1290 n.22

(11% Cir. 2004) (“Many courts have also considered

claims brought by prisoners subjected to extreme

cold, either alone or in combination with other

prison conditions. See, e.g.,...Mitchell v. Maynard,

80 F.3d 1433, 1443 (10! Cir. 1996) (...the court was

‘troubled by the lack of heat combined with the

lack of clothing and bedding’....) ...."); Valdez, v.

Farman, 766 F. Supp. 1529, 1535 (E.0. Cal. 1991) (“a

prisoner can invoke a clearly existing constitutional

right, and say ‘no' to prson officials who are

unjustifiably about to infringe on that route, without

fear, that force can be used with impunity in any

event to compel her to give up that cleary

established right"); Fruit v. Norris, 905 F.2d 1147, 1150

(8'» Cir. 1990) (“prison inmates are protected from

punishment for refusing to perform an

unconstitutional assignment, as they are protected

from having to perform the assignment"); Dooley v.

Quick, 598 F.Supp. 607, 616 n.6 (D.R. | 1984).(“The

fact an inmate may obtain redress after he has

been harmed does not excuse prison officials from

the duty to prevent harm in the first place.")

2\

cold air blowing from the cell's vent where

the cold could. not be adequately

ameliorated by the provided clothing or

bedding.

The Opinion also ignores’ the

judicially noticeable and briefed, Brief of

Appellant, p.11, fact that, pursuant to FDC

rules, any disciplinary action is discretionary

with FDC officials, and thus essentially

arbitrary, which gives rise to an inference

that the 12/20/03 DR was retaliatory where

no disciplinary action or lesser sanction

(see FDC Fla. Admin. Code R. 33-601 .303

(“reprimand an inmate verbally”; written

“Corrective Consultation of Inmate”’)) was

possible.

There appears to be a_ conflict

among the circuits as to what facts are

sufficient to properly plead a retaliatory

disciplinary action claim.

It is Petitioner's position that the

Court in Hasan v. U.S. Dept. of Labor, 400

22

F.3d 1001, 1005-1006 (7! Cir. 2003) as

correctly stated:

..the requirements for proving

causation in a retaliation case. As is

well settled in the context of

employment discrimination, e)

plaintiff who complains that he was

retaliated against for exercise of his

right to free speech need not prove

that, had it not been for that

exercise, the adverse action he is

charging would not have occurred.

All he need prove is that his speech

was a “motivating factor” in the

employer's decision to take adverse

action. Mt. Healthy School Dist.

Board of Education v. Doyle, 424 U.S.

274, 287,97 S.Ct. 568, SOL. Ed. 2d 471

(1997). .... if the employee leaps that

hurdle, the burden. shifts to the

employer to show that he would

have taken the action, anyway,

23

even if his heart had been pure. See

the cases just cited.... We cannot

think of a reason why a. stricter

standard of causation should apply

when the plaintiff is a prisoner rather

than an employee. A prisoner has

less freedom of speech than a free

person, but less is not zero, and if he

is the victim of refaliation for the

exercise of what free speech what

he does have, he should have the

same remedy as his free world

counterpart. Cf. Turner v. Safley, 482

U.S. [72] at 84, 107 S.Ct. 2254 [96 L.

Ed. 2d 64 (1987)].

Instead of considering the totality of

the circumstances which Petitioner pled,’

% See Millhouse v. Carlson, 652 F.2d 371, 373-374 (34

Cir. 1981):

We read appellant's complaint alleging

that he was subjected to a conspiratorially

planned series of disciplinary actions as

retaliation for initiating a civil rights action

against prison official. ....

24

see Complaint, pp. 3-7, Appendix F, to

determine whether the Petitioner

demonstrated that retaliation “was a

‘motivating factor'" for the 12/20/03 DR,

the Smith, 09-11423, court apparently

considered only Respondent's narrow DR

statement of facts, see Complaint

Appendix G, to the side “that officials

issued the report because [appellant]

failed to comply with an order."

Contrasted against the Hasan

analysis cited, supra, this finding appears

to follow a standard sent by the Eighth

. The court below should not have

considered each allegation of Millhouse's

complaint independently of the others. As

the Fourth Circuit stated in Russell v. Oliver,

552 F.2d 115, 116 (4th Cir. 1997), a liberal

construction of a pro se complaint “requires

that the Judge view all of [the] allegations

not as isolated incidents, but rather as a

unit.” Analyzed in this manner, it is clear that

appellant's complaint alleges that various

prison officials engage in a series of action

designed to punish him for seeking access

to the courts.

(footnotes omitted).

29

Circuit that “While a prisoner can state a

claim or retaliation by alleging that

disciplinary actions are based upon false

allegations, no claim can be state when

the alleged retaliation arose from discipline

implemented for acts that a prisoner was

not entitled to perform,” Orebaugh v.

Caspar, 910 F.2d 526, 528 (8'" Cir. 1990), or,

though relying on Mf. Healthy specifically,

the “but for” standard relied on by at least

three other circuits in regard to prisoner

retaliation claims. See McDonald v. Hall,

610 F.2d 16, 18 (15! Cir. 1979) (“Plaintiff must

prove that he would not have been

transferred ‘put — for’ the alleged

{retaliatory] reason."”); Smith v. Maschner,

899 F.2d 940, 949-950 (10!" Cir. 1990)

(“[Inmate Smith] must prove that ‘but for’

the retaliatory, the incident to which he

refers, including disciplinary action would

not have taken place.” }; Orebaugh, 910

F.2d at 528 (Heaney, J., dissenting) ("To

prevail on his retaliation claim, Orebaugh

26

has the concededly heavy burden of

showing that prison officials who

disciplined him had an_ impermissible

motive for doing so, an that but for this

impermissible motive, the disciplinary

charges would not have been brought.");

Woods v. Smith, 60 F.3d 1161, 1166 (5' Cir,

1995) ("To establish a claim of retaliation,

an inmate must allege the violation of a

specific constitutional right and be

prepared to establish that but for the

retaliatory motive, the complained of

incidents-such as the filing of disciplinary

reports as in the case at bar-would not

have occurred" (footnote omitted)}).

lt appears that in Petitioner's case,

the Eleventh Circuit was requiring a

heightened standard of pleading/proof in

regard to retaliation claim analogous to

the heightened burden of proof disproved

of by this court in Crawford-El, 523 U.S. at

594-597, 118 S.Ct at 1594-1596.

27

This Court should resolve the conflict

between circuits for pleading retaliation in

prisoner cases in determining — that

Petitioner sufficiently pled/evidenced as

retaliatory disciplinary action.

28

Is the Florida Department of

Corrections’ “Disobeying...any order,” 33-

601.314 § 6-1, Florida Administrative Code,

disciplinary rule constitutionally valid under

a Turner v. Safley, 482 U.S. 78, 89-90, 107

S.Ct. 2254, 2261-2262, 96 L.Ed.2d 64 (1987)

analysis?

FDC disciplinary rule 33.601.314 § 6-1

in its entirety reads: “Disobeying verbal or

written order-any order given to an inmate

or inmates by a staff member or other

authorized person."

This was the rule under which

Petitioner was infracted for the 12/20/03

DR, see Complaint, Appendix F.

Because the Petitioner believed that

any order that he was given’ by

correctional officers exposed the Petitioner

to unconstitutional conditions of

confinement, in this case, cold, was illegal

8 and Petitioner should not be punished for

2?

disobeying an illegal order,'® Petitioner

challenged constitutionality of the FDC

“Disobeying...any order" rule where on ifs

face the rule was not limited to legal or

reasonable orders, but allowed officials to

infract inmates for failing to obey the most

outrageous illegal, unreasonable orders as

well which apparently abrogated any due

'0 See Schoroder v. Maybellos, 823 ted. Supp. 806,

811 (D. Hawaii 1993):

When the prison has decided to punish

an inmate for failing to obey an order, the

lawfulness of the order is a _ legitimate

component of the analysis. See, e.g., Sf.

Clair v. Cuyler, 634 F.2d 109 (3 Cir. 1980)

(analyzing First Amendment concerns when

inmate refused to doff religious headgear):

Jiload v. O' Brien, 645 F.2d 556 (6 Cir. 1981)

(small consideration of whether constitution

clearly established a right to wear a beard

after inmate refused to shave); Tucker v.

Dickery, 613 F. Supp. 1124 (W. D. Wis. 1985)

inmates’ refusal to submit to urinalysis

require Fourth Amendment — analysis);

Jefferson v. Southworth, D.R.1. 1978) (prison

could not maintain unconstitutional lockup

despite inmate disobedience). Thus, in order

to show that...punishment was justified, the

Defendant must justified the legality of

order. rev'd 29 F.3d 634 (9 Cir. 1994)

(table) (finding no established right ol

prisoner violated by order at issue).

process consideration of the legality of an

order as a disciplinary hearing issue (or

element of the offense) !°

The Opinion in Smith, 09-11423, 7,

made merely conclusory findings that:

Here, (1) there ts a valid, rational

connection between the regulation

and the necessity of maintaining

safety and security in the prisons; (2)

alternative means existed for Smith

to express his Firs! Amendment rights;

(3) revising the rule to require

prisoner's to comply only with legal

orders would create vagueness in

the regulation and allow prisoners to

challenge every order they believed

fo be illegal; and (4) the rule is not

an exaggerated response to safety

CONnNCeI!INS.

The Opinion appears fo dety any

legal logic applying Turner, 482 U.S. at 89-

3]

90, 107 S.Ct. 2261-2262 (“when a prisoner

regulation impinges on inmates’

constitutional rights, the regulation is valid if

it is reasonably related to legitimate

penological interest"; “[flirst, there must be

a ‘valid, rationale connection’ between

the prison regulation and the legitimate

governmental interest put forward to justify

it"; “second factor relevant...is whether

they are alternative means of exercising

the right that remains open to be prison

inmates”; “third consideration is the impact

accommodations of the asserted right will

have on guards and other inmates, and on

the allocations of prison resources

generally"; “Finally, the absence of ready

alternatives is evidenced of the

reasonableness of a prison regulation. ....

By the same token the existence of

obvious, easy alternatives may be

evidenced that the regulation is not

reasonable, but is an ‘exaggerated

response’ to prison concerns”) to the FDC

32

“Disobeying...any order" rule. As to the first

Turner factor, the opinion fails to illuminate

how there can be any “valid, rational

connection between the regulation and

necessify of maintaining safefy and

security in the prisons" as to any illegal or

Unreasonable order.®'! Petitioner's case

particularly illustrates how illegal orders can

endanger prisoners’ health and even case

law documents that illegal orders can

endanger prisoners’ health and safety, see

Fruit, 905 F.2d at 1147 ( 9!) Cir. 1990)

(finding an eighth amendment claim

against prison officials regarding (refused)

orders to work in a wet-well of Numan

waste without protective clothing and

argument). The Opinion’s conclusion defies

'! See Graham v. Baughman, 772 F.3d 441, 445 (8'h

Cir. 1985) (“'neither the state nor the inmate has

any interest in treating an innocent party as guilty,’

LoBatt v. Twmey, 513 F.2d 641, 646 (7 Cir. 1975)");

Camillo v. Fabian, A03-1663 (Min. July 28, 2005) (“the

government derives no benefit from disciplining

inmates who have committed no offense. The

institution's goals of preparing and rehabiiitating

inmates for re-entry into society are better

achieved if they are treated fairly.").

33

the established case law concerning

Turner's first prong that “Nothing can save

a regulation that promotes an illegitimate

goal.” Amatel v. Reno, 156 F.3d 192, 196

(D.C. Cir. 1998), also cf. Waterman v.

Farmer, 183 F.3d 208, 214 (294 Cir. 1999)

(“the statute fails to satisfy this [first Turner]

prong if the statute promotes an interest

that is tiegitimate or not neutral, or if the

statute bears no ‘valid rational

connection’ to the asserted interest”).

The Opinion's conclusion concerning

the second Turner factor, stating that

“alternative means existed for Smith to

express his First Amendment rights" does

not explain what those “alternative

means" were for the Petitioner in this case

and Petitioner certainly cannot ascertain

what “alternative means" exist in the

context of the Petitioner having an

opportunity “to tell [the] official[s], before

[they] act, that [Petitioner] believes [their]

action[s] [are] illegal.” Clarke v. Stalder,

34

121 F.3d 222, 230 (5'h Cir. 1997) vacated in

part on jurisdictional grounds, 154 F.3d 186

(5'*? Cir. 1998) (en banc) cert. denied 525

woe. ISI, 1I9 S.Ct. 1082, 142 LEGi2a Se

(1999) as this established case law discerns

is the criteria for discerning “alternative

means" for this factor.

In regard to the third Turner factor,

the Opinion appeared patently absurd

where the court determines that adding

the limiting factor of “legal” order to the

rule “would create vagueness in the

regulation." That prisoners should be able

to “challenge every order they believe to

be legal” is established by case laws as a

retained due process right of prisoners, see

Schroeder, n.10, and other states' existing

prison rules establish the “legal order”

criteria as workable. See Williams v. Nix, |

Foe. 712, 714 n. 23 (9" CH. 1993)

(“Disobeying a Lawful Order. An inmate

commits an offense under this subsection

when the inmate refuse to obey an order,

35

en

rule, or regulation, or procedure , written or

verbal, given by any staff of the Division of

Corrections, or any other person in

authority which is reasonable in nature,

and which gives reasonable notice of the

conduct expected. " “Rules, Regulations,

and Disciplinary Procedures for

Government of lowa State Penitentiary

Inmates (1984]"); Gibbs v. Cook, 232 F.

Supp. 2d 1171, 1176 n.2 (D. Or. 2002)

(“Disobedience of Order Il, OAR 291-105-

0015(4) (b) occurs when an inmate ‘overtly

refuses to follow a valid order or...fails to

comply with a valid order, which creates a

threat to the safety, security, or orderly

operations of the facilify...."").

Petitioner's reliance on extant prison

rules cited in the proceeding cases belies

the Opinion's conclusion in regard to the

fourth Turner factor that “the rule is not an

exaggerate response to safety concerns.”

These existing rules demonstrate that the

obvious easy alternative to the current FOC

36

“Disbobeying...any order" rule is to simply

amend ihe rule to limit its scope to “legal”

and reasonable orders to accommodate

prisoner's retained rights to protect

prisoners from illegal orders and from

arbitrary disciplinary action which | fully

addresses any prison security concerns. This

court should take judicial notice of the fact

that the FDC amends its rules tens of times

e) year demonstrating that rule

amendment iS standard operating

procedure and has de minimus impact on

normal FDC operations. This “obvious, easy

alternative” is “evidence that regulation is

not reasonable, but is an ‘exaggerated

response’ to prison concerns." Turner, 482

U.S. at 90, 107 S.Ct. at 2262.

This Court shoula decide that the

circuit court's merely conclusory

application of Turner to the FDC

“Disobeying...any order" rule is an

insufficient determination as to the

constitutionality of the rule in finding that

37

the rule, at least, is an exaggerated

response to legitimate penological interest.

CONCLUSION

The Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

Y We cal

Glenn Smith DC# 8801 44

38