[00:00:00] Speaker 02:
Good morning, and welcome to the Ninth Circuit.

[00:00:03] Speaker 02:
I hear we have a bunch of high school students from Hillbrook.

[00:00:05] Speaker 02:
Is that right?

[00:00:07] Speaker 02:
Welcome.

[00:00:08] Speaker 02:
Look forward to chatting with you all after oral argument today.

[00:00:12] Speaker 02:
Before we begin, Judge Gould and I would like to thank Judge Seawright from Hawaii for visiting with us.

[00:00:17] Speaker 02:
It's a big help, and it's a pleasure to be sitting with you today.

[00:00:23] Speaker 02:
Thank you.

[00:00:25] Speaker ?:
OK.

[00:00:25] Speaker 02:
Three cases submitted on the brief and three cases being argued.

[00:00:30] Speaker 02:
I will go ahead and submit the three cases first.

[00:00:34] Speaker 02:
Robilar versus Garland will be submitted on the brief as of this day.

[00:00:38] Speaker 02:
Motion versus California Department of Water Resources will be submitted as of this day.

[00:00:43] Speaker 02:
And the United States versus Mulligan will be submitted as of this day.

[00:00:48] Speaker 02:
The first case for argument is Berg versus Jerezenda.

[00:00:52] Speaker 02:
Council, whenever you're ready.

[00:00:53] Speaker 01:
I just want to make sure that you can hear me.

[00:00:57] Speaker 02:
Yes, thank you.

[00:00:59] Speaker 03:
You are loud and clear.

[00:01:16] Speaker 03:
I'd like to thank the members of the panel for giving me this opportunity to present my arguments.

[00:01:20] Speaker 03:
The district court erred when denying Officer Atherton and Perriga's motion for summary judgment because they are entitled to qualified immunity, as they did not violate a clearly established constitutional right.

[00:01:31] Speaker 03:
Byrd lacks material admissible evidence establishing beyond debate all five elements of a retaliation claim under the First Amendment.

[00:01:39] Speaker 03:
First, Bird's refusal to house in his current cell, which Bird admits violated NDOC rules and subsequent demand to be moved at once due to undisclosed issues with his current cellmate, if less underdressed, would lead to a fight.

[00:01:55] Speaker 03:
It's not protected speech, especially when Bird refused to say whether he or his cellmate would be the one that would start the fight.

[00:02:05] Speaker 03:
Contrary to Bird's newly minted argument,

[00:02:07] Speaker 02:
Continue is the case of freedom of speech case or is it a petition of grievance case under the First Amendment?

[00:02:12] Speaker 02:
No, it's a it's well It's a First Amendment case because it's a retaliation claim, but is a retaliation for filing a grievance or is a retaliation for speech It doesn't matter.

[00:02:22] Speaker 03:
Well, it's it's it's it's retaliation for demand.

[00:02:25] Speaker 03:
He he didn't have he didn't have any protected speech He was demanding a cell move.

[00:02:30] Speaker 03:
I Mean he didn't file a grievance.

[00:02:32] Speaker 03:
No, he never if that's the question.

[00:02:33] Speaker 03:
He never filed a grievance.

[00:02:34] Speaker ?:
I

[00:02:35] Speaker 02:
Right, so it's not a petition of grievance case.

[00:02:37] Speaker 02:
Right.

[00:02:38] Speaker 02:
But all they clearly established law cited by the other side was, are they petition of grievance cases?

[00:02:43] Speaker 03:
I believe so, Your Honor.

[00:02:45] Speaker 02:
So does that knock it out based off of that?

[00:02:48] Speaker 03:
It does, especially considering it's qualified immunity.

[00:02:50] Speaker 03:
You have to have it clearly established.

[00:02:51] Speaker 03:
And it has to be within the, it doesn't have to be exact, but it has to be close.

[00:02:56] Speaker 03:
And it can't be.

[00:02:57] Speaker 03:
And in fact, if you look at the Carly case recently by this court, I think that pretty much, you're on our right, that that pretty much knocks this case out of the water.

[00:03:08] Speaker 03:
Because, like you said, Your Honor, Byrd never sought any redress for any misconduct by prison officials necessary to be one of the limited, because prisoners only have a limited First Amendment right retained by prison.

[00:03:19] Speaker 03:
Nor could he, because he got what he wanted in the end.

[00:03:21] Speaker 03:
He got a cell move.

[00:03:23] Speaker 03:
When Officer Hunnaker ordered Byrd to stay in his cell, Byrd insubortantly responded, No, sir, I'm not.

[00:03:29] Speaker 03:
You can't have prisoners doing that.

[00:03:31] Speaker 03:
thus refusing a direct order to remain in his cell.

[00:03:34] Speaker 03:
Without any allegation that Bird's cellmate had threatened Bird, and there is no allegation that Bird, although they want you to say there is, but there isn't, a reasonable officer in a vintage shoes would have deemed Bird's demand for an immediate move as unprotected, unsubordinate ultimatum in violation of NJ 57, to which Bird pled guilty.

[00:03:54] Speaker 03:
As this court held in Watkins, Bird cannot rely on an act of speech that he concedes violates a legitimate,

[00:04:01] Speaker 03:
prison rules as the basis for his speech retaliation claim, because the confrontational disorderly manner in which the inmate complained about the treatment removed the grievance for First Amendment protection.

[00:04:14] Speaker 03:
And I'd also like to, I don't want to go into it, but you can read my briefs about the Calhoun case of the Seventh Circuit, which pretty much is indistinguishable from the facts of this case.

[00:04:22] Speaker 03:
Byrd has filed to cite any definite authority that squarely governs the specific facts at issue that establishes beyond debate that it inmates demand

[00:04:30] Speaker 03:
for an immediate move, for admitted insubordination, and a violation of personal action was protected speech.

[00:04:39] Speaker 03:
In Rhodes, Brodeur, and Endler, all cited by them, unlike this case, the enemy was not insubordinate, but sought to remedy prison injustices, which is one of the limited First Amendment rights still afforded to prisoners.

[00:04:50] Speaker 03:
Before the district court, Berg never argued that demanding a sell move was an attempt to informally resolve agreements, as they claim now.

[00:04:58] Speaker 03:
And it wasn't, because there had no grievance.

[00:05:01] Speaker 03:
Byrd never asserted any injustice caused by prison officials, did not threaten to file a grievance, or even claimed that his cellmate had threatened him in any way.

[00:05:09] Speaker 03:
Byrd admits that he was provided the requested move and therefore had no reason to file a grievance.

[00:05:15] Speaker 03:
No court has held that an insubordinated demand for a move without asking to be addressed for any wrongdoing by prison officials or any indication that cellmate had threatened him in any way was protected speech.

[00:05:26] Speaker 02:
Can you explain what the context of the statement, fight him or fight me, is and how that's legitimate?

[00:05:32] Speaker 03:
Well, the thing is, of course, our officers say they never said that.

[00:05:36] Speaker 03:
But we have to assume for the purpose of summary judgment.

[00:05:39] Speaker 03:
But the thing is, if a cellmate is saying, hey, fight him or fight me, he's not threatening any fight.

[00:05:47] Speaker 03:
He's saying, hey, you're going to have a fight on your hands.

[00:05:49] Speaker 03:
And you've got to also think of this in the prison context.

[00:05:53] Speaker 03:
These are prisoners.

[00:05:54] Speaker 03:
These are not.

[00:05:55] Speaker 03:
People, you know, your Sunday school girls who are... Dude, is a verbal fight not a physical fight, or are you saying that even if it was... From the reasonable standpoint of a reasonable officer, because we're here at Qualified Immunity.

[00:06:07] Speaker 03:
So you have to look at it from where an officer would say, he's telling Burt, hey, you gotta move, you gotta either move, stay in your cell, or you're gonna have a fight on your hands.

[00:06:16] Speaker 03:
And since he didn't claim that his cellmate was ever going to fight him, he's kind of a thing saying, hey, you're not claiming that your cellmate's fighting you yet.

[00:06:26] Speaker 03:
So it's better that you stay in your cell with your cellmate than you come out with me.

[00:06:31] Speaker 03:
Like I say, you have to look at this from a prison context by a reasonable prison official.

[00:06:38] Speaker 03:
Prison officials, prisoners are hardly using

[00:06:41] Speaker 03:
genteel language.

[00:06:43] Speaker 03:
It's not surprising that a president official, when you have an inmate that is trying to insubortantly say, no, I'm not going to follow your orders, to tell them, yes, you are.

[00:06:52] Speaker 03:
And I don't think if you've found this to be protected speech, there would be nothing left of it.

[00:06:58] Speaker 03:
Everything an inmate would say would be protected speech and fall under.

[00:07:01] Speaker 03:
And that would be absolutely contrary to the Supreme Court precedent that says, hey, inmate only have limited First Amendment rights.

[00:07:08] Speaker 03:
It's a very small, narrow gap of things that they can do in prison.

[00:07:12] Speaker 03:
And it's not like religion.

[00:07:14] Speaker 03:
Religion is a whole different thing.

[00:07:15] Speaker 03:
You have, of course, the ralupa, which guarantees prisoners broad things that goes under strict scrutiny.

[00:07:21] Speaker 03:
But that doesn't happen in the First Amendment retaliation context.

[00:07:24] Speaker 02:
to do with the dispute of whether or not his items in his possession were contraband or not, and the list was not necessarily properly maintained?

[00:07:35] Speaker 03:
But the rule is undisputed, what the rule provides.

[00:07:38] Speaker 03:
He can say, I mean, if the inmate can say, I don't have to follow prison rules because the rule isn't being enforced uniformly, well, guess what?

[00:07:45] Speaker 03:
You're going to be able to have prisoners coming here every day of the week saying, hey, I don't have to follow that prison rule because guess what?

[00:07:52] Speaker 03:
It's not enforced uniformly.

[00:07:53] Speaker 03:
That's not an argument.

[00:07:54] Speaker 03:
You know, just because he says it isn't, but what it says is there is no exception in the prison rule.

[00:08:00] Speaker 03:
You read the rule, and there's no exception there for saying, hey, I don't have to put this on my property card.

[00:08:05] Speaker 03:
And the reason why it's clear, Your Honor, why you have to put that stuff on your property card, because just for example, this is a great example.

[00:08:12] Speaker 03:
We have a prisoner claiming he had a property that

[00:08:15] Speaker 03:
Most likely, he never possessed.

[00:08:18] Speaker 03:
I mean, how would you stop that?

[00:08:19] Speaker 03:
How would you stop a prisoner?

[00:08:20] Speaker 03:
Or even worse, you have a prisoner stealing property, which goes on all the time, and saying, stealing property, and says, oh, this is my property.

[00:08:27] Speaker 03:
Not on your property card.

[00:08:28] Speaker 03:
That's how we determine whose property is whose property in prison.

[00:08:31] Speaker 03:
If it's not on the property card, it's not their property.

[00:08:33] Speaker 03:
And there it's contrabanded, and it could be confiscated at any time.

[00:08:37] Speaker 04:
Going back to backing up a few steps, the district court did call

[00:08:43] Speaker 04:
Mr. Byrd's statement, a grievance.

[00:08:45] Speaker 04:
That's how she referred to it in her order.

[00:08:47] Speaker 04:
You disagree with that, I take it.

[00:08:50] Speaker 03:
Yes, I do disagree with the grievance, because where's the fact though?

[00:08:54] Speaker 03:
I would like somebody to point to me in a place where he says it's a grievance.

[00:08:56] Speaker 04:
So what is the line between a grievance and just making a statement?

[00:09:02] Speaker 03:
Is there any case law that establishes that line?

[00:09:05] Speaker 03:
for example in this case okay so so you have a case and you actually have birth saying that my my cellmate is threatening me right which is you know we want to take care of that kind of thing we don't want to have people getting beat up in prison well guess what

[00:09:21] Speaker 03:
that there's a thing called an emergency grievance that you can file in writing immediately.

[00:09:28] Speaker 03:
He could have asked for an emergency grievance.

[00:09:29] Speaker 03:
I'm going to be threatened by my cellmate.

[00:09:31] Speaker 03:
I want an emergency grievance.

[00:09:32] Speaker 03:
You put it down in writing right then.

[00:09:34] Speaker 03:
You file it.

[00:09:35] Speaker 03:
You get an immediate response, pretty much.

[00:09:37] Speaker 03:
And that's how you do it.

[00:09:40] Speaker 03:
Under the Ninth Circuit president, it doesn't have to be in the writing, but under NDOC regulations, it does.

[00:09:46] Speaker 01:
Judge Gould has a question.

[00:09:48] Speaker 01:
Judge Gould, I have a question for you.

[00:09:52] Speaker 01:
I have the same question that Judge Seabright asked.

[00:09:57] Speaker 01:
Do we have any existing Ninth Circuit precedent that says that the type of verbal statements made here constitute a grievance?

[00:10:12] Speaker 03:
We don't have anything that says it constitutes a grievance.

[00:10:15] Speaker 03:
The closest thing probably you have is the...

[00:10:21] Speaker 03:
I think it was the Rhodes case is what they cite.

[00:10:24] Speaker 03:
But the thing is, what he was doing, though, is he was seeking a redress for a correction officer that was saying, hey, if you don't do what I tell you, if you keep filing these grievances against me, I'm going to transfer you.

[00:10:38] Speaker 03:
And so he made a direct threat against the inmate and said that.

[00:10:41] Speaker 03:
And so that's why they said, hey, when he's trying to remedy that, that's protected speech.

[00:10:46] Speaker 03:
But here, no officer did anything to him.

[00:10:49] Speaker 03:
I mean, so that's why it's not protected.

[00:10:51] Speaker 03:
You cannot have an inmate saying, hey, I am just not going to do what you say.

[00:10:54] Speaker 03:
This is what we have here.

[00:10:56] Speaker 02:
Do you have any other questions?

[00:10:58] Speaker 03:
OK, thank you.

[00:11:14] Speaker 00:
Good morning, your honors, and may it please the court.

[00:11:16] Speaker 00:
Lindsay Franklin on behalf of Keith Bird.

[00:11:19] Speaker 00:
This court should affirm the denial of qualified immunity for three reasons.

[00:11:23] Speaker 00:
First, appellants' argument are based on construing the record in the light most favorable to defendants.

[00:11:28] Speaker 00:
That is the opposite of what this court standard requires, which is to draw all reasonable inferences in favor of Mr. Bird and to resolve all factual disputes in his favor.

[00:11:38] Speaker 00:
Second, this court's binding precedent makes clear as a matter of law that threatening an incarcerated person with physical violence and confiscating his property, here religious materials were included in that, his Quran and his prayer rug, and retaliation for lodging of grievances violates the First Amendment.

[00:11:55] Speaker 00:
Third, because this court's decisions were issued well before 2018, the defendants here had years worth of fair notice that their conduct violates the Constitution.

[00:12:04] Speaker 04:
because the district court did use a very broad, just first-men retaliation standard, right, as the clearly established law.

[00:12:13] Speaker 04:
But this case does feel different.

[00:12:16] Speaker 04:
There was no grievance about an officer or about the institution itself.

[00:12:23] Speaker 04:
It was a statement about, you know, help me get out of this situation I'm in.

[00:12:28] Speaker 04:
Certainly, if they did nothing and then he said, hey, I warned you and you did nothing, that becomes a grievance.

[00:12:34] Speaker 04:
But why should we, number one, consider it a grievance?

[00:12:37] Speaker 04:
And even if we do, what clearly established law is there such that we should consider it clearly established?

[00:12:44] Speaker 00:
Sure, Your Honor.

[00:12:45] Speaker 00:
So under Broadheim, this court said that any statement that is part of the grievance process is protected activity.

[00:12:51] Speaker 00:
And here, Mr. Byrd did exactly what was required under the NDOC's procedures, which is to first raise any issues through discussion with staff before filing a written grievance.

[00:13:01] Speaker 00:
And relatedly, this court held in Entler that oral grievances are protected conduct.

[00:13:06] Speaker 00:
And here, Mr. Bird's concern goes to the heart of prison's duty to protect incarcerated people from the hands of violent inmates.

[00:13:17] Speaker 00:
And so this was definitely a grievance under this court's case law.

[00:13:23] Speaker 02:
But I'm not sure if that's correct.

[00:13:25] Speaker 02:
In Broadheim, there was many, many steps after the fact of the first initial grievance that led to the retaliation.

[00:13:33] Speaker 02:
Here, it's all one step, right?

[00:13:36] Speaker 02:
In Broadheim, there was something to grieve about.

[00:13:39] Speaker 02:
I forget what the facts were.

[00:13:40] Speaker 02:
And then he complained to the officer.

[00:13:41] Speaker 02:
The officer denied it and then retaliated after the fact.

[00:13:48] Speaker 02:
Is that the instruments?

[00:13:50] Speaker 02:
Well, anyway.

[00:13:51] Speaker 02:
So there's all these steps that happen, like grievance, something to complain about, aggrieved to the officer, the officer denies the grievance, and then there's retaliation based off of that grievance.

[00:14:04] Speaker 02:
Here, we don't have that chain of causation, so I don't understand how we could be in clearly established law here.

[00:14:13] Speaker 00:
Well, the grievance doesn't need to be denied for an officer to retaliate against an incarcerated person for having raised the grievance.

[00:14:21] Speaker 00:
They can still even grant, as was the case here, they can grant the relief that was requested.

[00:14:26] Speaker 00:
But the inquiry is whether there's an adverse action in retaliation or because of the protected conduct.

[00:14:32] Speaker 00:
And Mr. Bird's speech was protected conduct.

[00:14:34] Speaker 02:
Well, let me put it this way, can you name a case that provides clearly established law that's saying that we don't need all these intermediate steps in between to prove a retaliation claim?

[00:14:44] Speaker 00:
I think in Entler that would be the case, because there the incarcerated person, or actually, well, Entler cites Jones.

[00:14:53] Speaker 00:
In Jones v. Williams, the incarcerated person approached an officer and complained about threats of discrimination, and he was accordingly written up.

[00:15:02] Speaker 00:
And that was the retaliation.

[00:15:06] Speaker 00:
But again, in Entler, this court was clear that an oral grievance is protected conduct.

[00:15:11] Speaker 00:
So any adverse action taken because of that protected conduct is violative of the First Amendment.

[00:15:17] Speaker 04:
But the question becomes, what is protected conduct?

[00:15:19] Speaker 04:
It's constitutionally protected conduct.

[00:15:22] Speaker 04:
We use shorthand to just say protected conduct, but we're talking about constitutionally protected conduct.

[00:15:28] Speaker 04:
And it seems people are, the court below at least, just assumed that this was a grievance.

[00:15:36] Speaker 04:
And to me, when I looked at the case law and cases I've handled in the past, grievance that I've seen is always about something the institution has done in some way.

[00:15:48] Speaker 04:
Whether it be an officer, it's I'm not being given the meals I need for my religious practices, I'm not being given the time I need for this, whatever it is.

[00:16:00] Speaker 04:
It's about the institution doing something.

[00:16:03] Speaker 04:
So can you tell me any case that has said making a statement, not complaining at all about the institution itself, but complaining about another inmate, can give rise to a First Amendment retaliation claim?

[00:16:25] Speaker 04:
Is that clearly established?

[00:16:28] Speaker 00:
Standing before you, nothing is coming to mind as a particular complaining about something that the institution didn't do.

[00:16:35] Speaker 00:
But I think taking a step back, Mr. Bird was placed into the cell by the institution three days prior to his lodging of grievance saying, I need to be moved to a different cell.

[00:16:44] Speaker 00:
And that's exactly the kind of thing that the institution is able to remedy.

[00:16:47] Speaker 00:
And the institution alone is able to remedy.

[00:16:49] Speaker 00:
And the NDLC's grievance procedures

[00:16:52] Speaker 00:
kind of define what a grievance is under their own definition.

[00:16:56] Speaker 00:
And so that's in the record at page 175.

[00:16:59] Speaker 00:
And they say it has to concern a loss or harm, it has to relate to the conditions of confinement, and it has to be within the ability of the staff to address.

[00:17:07] Speaker 00:
And all those things are the case here.

[00:17:08] Speaker 00:
When he raised his grievance, it was all within the realm of the ability of prison guards to address.

[00:17:13] Speaker 00:
And it related to the periscope of loss or harm, which was a personal injury from his cellmate.

[00:17:19] Speaker 02:
I guess my confusion, you're saying the statement to, I forget the first officer's name, that I need to be moved because that's the grievance?

[00:17:28] Speaker 00:
Yes, that's the protected conduct.

[00:17:31] Speaker 02:
But that's not even denied, so you're not grieving anything that the institution has denied?

[00:17:38] Speaker 00:
I don't think there has to be something that the institution has denied in order for there to be a grievance.

[00:17:43] Speaker 00:
I think they can complain that their property was taken by a fellow inmate, and that would be a grievance under the NDO's procedures.

[00:17:50] Speaker 04:
Let me ask this.

[00:17:51] Speaker 04:
The officers allegedly, and I can agree that, you know, for this discussion there's sufficient evidence that these two officers took his

[00:18:03] Speaker 04:
items out of his cell, but they did it after he pushed that tub in the door and refused to leave.

[00:18:09] Speaker 04:
So why isn't any, even if you're right, why isn't there a break in causation here?

[00:18:14] Speaker 04:
It seems to me just common sense wise.

[00:18:17] Speaker 04:
If someone's going to retaliate, it's not based on just saying I'm having trouble with an inmate.

[00:18:22] Speaker 04:
It's because I'm ordering somebody to do something and they say no in a prison setting.

[00:18:28] Speaker 04:
Then the adverse action happens.

[00:18:30] Speaker 04:
Even understanding the summary judgment standards and so forth, why isn't that just a breach in the causation?

[00:18:35] Speaker 00:
Sure, Your Honor.

[00:18:36] Speaker 00:
I don't think it's a breach in causation because the incident in the cell in which he pushed the tub involved Officer Hunker, who is not a party to this case.

[00:18:44] Speaker 00:
The defendants in this case are Pariga and Atherton, and there's nothing in the record suggesting that they were present for that incident or even knew about it.

[00:18:51] Speaker 00:
So again, construing the record in the light most favorite to Bird, we have no reason to believe that they even knew that that had occurred.

[00:18:57] Speaker 00:
And so there's no break in causation between the grievance and the property confiscation.

[00:19:05] Speaker 01:
Judge Gould, do you have a question?

[00:19:07] Speaker 01:
I have a question for you.

[00:19:09] Speaker 01:
Is there any Supreme Court authority defining what a grievance is?

[00:19:16] Speaker 00:
Standing before you today, I can't think of that in particular.

[00:19:20] Speaker 00:
However, in Pell, which we cite in our brief at page 11, the Supreme Court stated that incarcerated people retain all First Amendment rights that are not inconsistent with their status as incarcerated or with legitimate penological goals.

[00:19:34] Speaker 00:
And so here, there was nothing about Bird's statement that was inconsistent with his status as incarcerated.

[00:19:40] Speaker 00:
And as a result, I think it would be protected conduct because he retains that First Amendment right.

[00:19:46] Speaker 01:
What's your best case authority in the Ninth Circuit that this is a grievance?

[00:19:56] Speaker 00:
I think the best case authority would be a combination of Entler and Jones v. Williams, which is cited in Entler, for which Your Honor was on the panel, in which it said that oral grievances are protected conduct.

[00:20:12] Speaker 01:
Thank you.

[00:20:13] Speaker 02:
Could you respond to your opposing counsel's argument that it doesn't matter whether or not possessions are on the list and whether or not that's selectively enforced.

[00:20:24] Speaker 02:
It doesn't matter for this purpose.

[00:20:26] Speaker 00:
I don't think that's right because this court made clear in Shepard and in Bruce that the prison guards can't use a valid prison procedure as a ruse or as a justification for retaliatory conduct.

[00:20:40] Speaker 00:
There has to be, under the circumstances, the enforcement of the rule has to be advancing a legitimate penological goal.

[00:20:48] Speaker 00:
And so here it does matter if the property is never listed on property cards.

[00:20:52] Speaker 00:
There was really no reason for the confiscation if they didn't know what was contraband and what was not, what was unlisted and what was not.

[00:21:02] Speaker 00:
And I think it's also important here, and see I'm running out of time, may I finish?

[00:21:08] Speaker 02:
Oh yeah, please go ahead, sorry.

[00:21:10] Speaker 00:
I think it's also important here that the defendants have not submitted anything in the record clearly showing that the property was in fact unlisted on the property cards.

[00:21:18] Speaker 00:
They submitted a property card at 1.50, but it is neither dated nor signed, and none of the verifications in the record support that it was, it reflects Mr. Bird's property card at the time of the incident.

[00:21:30] Speaker 00:
I think the court for its time and respectfully ask that it affirm the denial of qualified immunity.

[00:21:35] Speaker 02:
Thank you, counsel.

[00:21:36] Speaker 02:
We'll give you one minute.

[00:21:42] Speaker 03:
I'd like to talk a little bit about the grievance, because I think that's been an issue here.

[00:21:46] Speaker 03:
I don't think you have to go any further than when Officer Perigari and

[00:21:51] Speaker 03:
and the appellants were talking to the defendant and they were asking him and saying, hey, who's going to fight?

[00:21:57] Speaker 03:
Who's going to start this fight?

[00:21:57] Speaker 03:
You or your cellmate?

[00:21:58] Speaker 03:
And Bird refused to answer.

[00:22:00] Speaker 03:
I mean, if he was actually doing a grievance, then this would be, he would have said, yeah, my cellmate's going to kick my butt, you know, or something along those lines, right?

[00:22:09] Speaker 03:
What he was doing is not a grievance, but he was a request.

[00:22:12] Speaker 03:
He was, well, in simple terms, but it wasn't really a request.

[00:22:15] Speaker 03:
It was the demand.

[00:22:17] Speaker 03:
I want to be moved.

[00:22:18] Speaker 03:
You've got to move me.

[00:22:20] Speaker 03:
I mean, and that's just not the way prisons work.

[00:22:25] Speaker 03:
Well, the causation, well, first of all, without any protective speech or any adverse action.

[00:22:31] Speaker 04:
I'm talking about the breaking chain of causation.

[00:22:33] Speaker 03:
Well, the thing is, I don't think there's a, well, I don't think there even has to be a breaking chain of causation.

[00:22:40] Speaker 03:
There's no evidence establishing any kind of causation other than timing.

[00:22:43] Speaker 03:
Timing does not establish causation.

[00:22:46] Speaker 03:
And so I guess I'm out of time, Your Honors, and I really appreciate the opportunity to speak with you.

[00:22:49] Speaker 03:
And I would respectfully request that you reverse the district court and order them to enter summary judgment on behalf of appellants.

[00:22:54] Speaker 03:
Thank you very much.

[00:22:55] Speaker 02:
Thank you, council.

[00:22:56] Speaker 02:
This case is submitted.