[00:00:00] Speaker 02:
Thank you, your honor, and may it please the court.

[00:00:02] Speaker 02:
Katherine Bruce on behalf of plaintiff appellant Douglas Shields.

[00:00:06] Speaker 02:
I will reserve three minutes for rebuttal.

[00:00:10] Speaker 02:
At core, this case is about ensuring pro se litigants have their claims fully heard.

[00:00:15] Speaker 02:
I'll focus on three points today.

[00:00:17] Speaker 02:
I'll begin by addressing the equal protection claim for disparate discipline, then turn to the Norwood instruction and briefly address procedural due process.

[00:00:31] Speaker 02:
Beginning with the equal protection claim, the court said the equal protection claim was dismissed at screening.

[00:00:37] Speaker 02:
Defendants agree that this equal protection claim was dismissed at screening.

[00:00:42] Speaker 02:
So everyone agrees really that the issue is whether the allegations in the complaint state a claim such that they should have proceeded beyond the screening stage.

[00:00:51] Speaker 02:
And that's really well trodden ground.

[00:00:55] Speaker 03:
When I look at the screening order, I don't see it mentioning the disparate disciplinary treatment at all.

[00:01:03] Speaker 03:
It only mentions the disparate access to the chapel.

[00:01:07] Speaker 02:
That's right, Your Honor.

[00:01:08] Speaker 02:
The procedural circumstances here are a bit unusual.

[00:01:11] Speaker 02:
The screening order was silent on this aspect of the equal protection claim.

[00:01:16] Speaker 02:
And it was only after trial where the district court made clear that actually this component of the equal protection allegations, this claim was dismissed earlier at the screening stage.

[00:01:29] Speaker 02:
Can it do that?

[00:01:32] Speaker 02:
I think the way to interpret the post trial order is to say that the screening orders silence on the equal protection allegations concerning this discipline claim was effectively dismissal.

[00:01:48] Speaker 02:
So the district court proceeded, allowed those claims to proceed that were explicitly mentioned in that order and then dismissed the rest.

[00:01:59] Speaker 02:
think we have to take the district court at its word that that's what it was doing and defendants certainly appear to agree that really the operative question here is what do the allegations in the complaint say as far as whether there's a claim for equal protection based on the discipline and here the allegations do the

[00:02:23] Speaker 02:
Record at 241-242 identifies specific defendants who are alleged to have singled out and punished my client on the basis of his sexual orientation.

[00:02:34] Speaker 02:
The allegations state that he appeared in a photograph and was punished, whereas others in the photograph were not.

[00:02:39] Speaker 01:
Why is that the proper inquiry for who is in a similar situation?

[00:02:46] Speaker 01:
Are there any other allegations beyond just who's depicted in the photograph for the similarly situated element?

[00:02:54] Speaker 02:
For the similarly situated element, the allegations are that the reason for the punishment was appearing in the photograph.

[00:03:03] Speaker 02:
The other people who appeared in the photograph were not punished, and my client was.

[00:03:06] Speaker 01:
And the only difference is that he's... Wasn't Mr. Shields the only one who had taken the photograph, at least according to the record, out of the chapel?

[00:03:14] Speaker 02:
So two things, Your Honor.

[00:03:16] Speaker 02:
First is that strictly... If we're just looking at the allegations in the complaint, that's not clear from the allegations in the complaint, which is really the operative question when it comes to failure to state a claim.

[00:03:29] Speaker 02:
Second, the...

[00:03:33] Speaker 02:
The record as it was developed later made clear that the photograph in particular and posing for the photograph especially was itself compromise and was sufficient to form the basis for the compromise charge.

[00:03:46] Speaker 02:
You hear this in the recording of the disciplinary

[00:03:50] Speaker 02:
hearing in which the defendant Gilliland said, posing for a photograph screams compromise.

[00:03:57] Speaker 02:
In the summary of the disciplinary hearing, posing for a photograph is also specifically called out.

[00:04:03] Speaker 02:
So the posing for the photograph is itself the favorable treatment that we're talking about.

[00:04:09] Speaker 01:
What are we supposed to do?

[00:04:10] Speaker 01:
And I guess this picks up on

[00:04:12] Speaker 01:
your conversation with Judge Koh where this is screened out, although we're not sure.

[00:04:19] Speaker 01:
People weren't necessarily clear that it was at the time.

[00:04:25] Speaker 01:
But then the record further develops.

[00:04:28] Speaker 01:
Are we not asking for the equal protection claim here just whether the allegations state a claim?

[00:04:34] Speaker 02:
We're asking whether the allegations state a claim such that it should have proceeded throughout the course of the litigation and ultimately to trial.

[00:04:42] Speaker 02:
This claim wasn't tried, and it should have been, and really, at core, that's the problem.

[00:04:50] Speaker 01:
But I guess if we're going to look at the remaining record, there are all sorts of things that differently situate Mr. Shields for purposes of the punishment.

[00:05:01] Speaker 01:
So if the state gives the reasons that

[00:05:08] Speaker 01:
It seemed like one of the predominant reasons was that he had taken this and was in possession of contraband.

[00:05:15] Speaker 01:
And the other two people in the photos, was there any evidence about whether they had taken anything or were in possession of contraband?

[00:05:25] Speaker 02:
Well, if we're looking at the evidence at trial, Your Honor, two things.

[00:05:27] Speaker 02:
So first, as I mentioned, the photograph was especially important to the compromise charge.

[00:05:33] Speaker 02:
And secondly,

[00:05:36] Speaker 02:
The other people in the photograph weren't even investigated for compromise.

[00:05:40] Speaker 02:
One of them testified at trial.

[00:05:42] Speaker 02:
He said he was never subject to the search that my client was.

[00:05:45] Speaker 01:
I guess there are two searches.

[00:05:50] Speaker 01:
Which search are you talking about?

[00:05:52] Speaker 02:
He's testified that he wasn't subject to any kind of search, including a self-compliance search, or at least we don't know.

[00:05:59] Speaker 02:
He was never investigated.

[00:06:01] Speaker 02:
His testimony supports that inference for staff compromise.

[00:06:05] Speaker 02:
And that's not withstanding the fact that other testimony at trial supported that it was a very serious charge, that it was taken extremely seriously by the institution.

[00:06:18] Speaker 02:
And it also bears noting that the chaplain, you hear him on the recording of the disciplinary hearing, he said he allows the other clerks to have access to the same office supplies.

[00:06:33] Speaker 02:
Compromise is really about favorable treatment.

[00:06:37] Speaker 03:
Should we consider the supplies as well when we're trying to figure out who are the correct comparators for Mr. Shields?

[00:06:46] Speaker 03:
There's nothing in the record that says the other individuals in the photograph with the chaplain also had the CDs and the trash bags and other items, right?

[00:06:55] Speaker 02:
Right.

[00:06:55] Speaker 02:
But the record does say that the other clerks had access to those things, that the chaplain gave them those things, which is, you know, itself compromising.

[00:07:02] Speaker 02:
That's what he said on the recording.

[00:07:05] Speaker 02:
We also, it's supported in the record that those individuals weren't even investigated for compromise, and I think that's critical because the testimony at trial was also that it's taken very seriously, that it's a very serious infraction, and that it poses, you know, all these dangers to the institution.

[00:07:21] Speaker 01:
Well, I mean, at the back end of the process, some of that came through in the proceedings,

[00:07:29] Speaker 01:
Where going in, if we look at the charges, does, in your view, do the defendants frame the disparate discipline, the allegedly disparate discipline, as compromise based on facts that are similarly situated to the other people in the photo?

[00:07:52] Speaker 01:
Where should we find that charge?

[00:07:55] Speaker 01:
In other words, where's your best evidence in the record that the state was desperately treating, intentionally, with purpose to desperately treat Mr. Shields?

[00:08:09] Speaker 02:
So two things, Your Honor.

[00:08:10] Speaker 02:
First again, I think our position here is that the allegations in the complaint are really what's operative here, because this claim wasn't actually tried.

[00:08:18] Speaker 02:
The jury was never asked about this aspect of equal protection, so that's

[00:08:23] Speaker 02:
I think point number one, and defendants agree on that.

[00:08:27] Speaker 02:
They agree that this is really a question of what the allegations in the complaint state.

[00:08:31] Speaker 01:
OK.

[00:08:31] Speaker 01:
Well, right.

[00:08:33] Speaker 01:
You've talked to some.

[00:08:34] Speaker 01:
One of the things we'll have to figure out is what we do with the fact when something that's, in retrospect, screened out after the development of a record, how we deal with that.

[00:08:43] Speaker 01:
But if we're to then avert our eyes from the rest of the record, which seems to be the appropriate way

[00:08:51] Speaker 01:
measuring these pleadings, why is it not just conclusory to say that I'm similarly situated to the people in the photo?

[00:08:58] Speaker 01:
Why is that the basis given that the discipline was, as alleged here, a whole host of other things that those other people in the photo did not do?

[00:09:14] Speaker 02:
Well, as alleged, it's really based on the photograph.

[00:09:20] Speaker 02:
The second, Your Honor, the allegations here say that he was specifically punished because of appearing in this photograph.

[00:09:28] Speaker 02:
The other people who appeared in the photograph were not punished.

[00:09:31] Speaker 02:
He was gay, and they were not.

[00:09:34] Speaker 02:
So that's the similarly situated piece.

[00:09:36] Speaker 01:
So walk me through where in the complaint.

[00:09:40] Speaker 01:
I figure it's somewhere on 241 to 242.

[00:09:43] Speaker 01:
But where does Mr. Shields spell that out?

[00:09:47] Speaker 02:
Paragraph four, Your Honor.

[00:09:51] Speaker 02:
He says he was singled out and he was punished for appearing in this photograph and the reason was because of his LGBT status.

[00:09:57] Speaker 02:
And it was an authorized photograph.

[00:09:58] Speaker 02:
That's what the allegations state.

[00:10:01] Speaker 02:
And then it goes on to state that the reason for his placement in disciplinary segregation was because he was LGBT.

[00:10:09] Speaker 02:
You can see that in paragraph 11, in paragraph 12 as well.

[00:10:15] Speaker 02:
So that is sufficient at the pleading stage.

[00:10:18] Speaker 02:
That hits all of the,

[00:10:21] Speaker 01:
Elements of an equal protection claim and What I guess so what are we supposed to do then with the fact that we're reviewing a judgment and not a particular order and in fact here, we've got a non-order It's only retroactively read as screening us out where they go to trial and now we have a full record and including a record of

[00:10:52] Speaker 01:
the other reasons for discipline.

[00:10:55] Speaker 01:
What if we view that record as ruling out the possibility that the allegations in the complaint are plausible?

[00:11:07] Speaker 01:
What do we do with that?

[00:11:08] Speaker 01:
I'm not sure either, but that's kind of where we are given that the rest of the case proceeded on similar claims.

[00:11:15] Speaker 02:
It's certainly unusual.

[00:11:17] Speaker 02:
It's an odd procedural circumstance, I grant you.

[00:11:22] Speaker 02:
I think if you look at the trial record, first of all, we would say there is absolutely sufficient evidence from the trial to support the equal protection theory that really was never asked of the jury.

[00:11:37] Speaker 02:
But second of all, really, it was never tried, I think is kind of what it comes down to.

[00:11:43] Speaker 02:
The court made clear it was never tried.

[00:11:45] Speaker 02:
The jury was never asked about it.

[00:11:50] Speaker 02:
A jury could have credited my client's testimony, but they were never asked.

[00:11:54] Speaker 03:
But why do you think the jury would have come out differently on equal protection retaliation than they did on First Amendment retaliation?

[00:12:03] Speaker 03:
It would basically be the same facts, right?

[00:12:08] Speaker 02:
Yes, the adverse action is the same.

[00:12:11] Speaker 02:
Of course, the motive is different.

[00:12:15] Speaker 02:
And we can talk about their issues, of course, is our position with the First Amendment retaliation instruction.

[00:12:20] Speaker 02:
But the jury could have, first of all, come out a different way on the motive.

[00:12:31] Speaker 02:
They also could have

[00:12:40] Speaker 02:
There's five elements to a First Amendment retaliation claim.

[00:12:44] Speaker 02:
Again, our position is that there was issues in the jury instruction on that claim.

[00:12:50] Speaker 02:
The jury could have found that any one of those five elements weren't sufficient, but still found that there was a discriminatory motive with respect to the discipline on the equal protection claim.

[00:13:05] Speaker 03:
Can I ask?

[00:13:06] Speaker 03:
Sure.

[00:13:06] Speaker 03:
You said earlier that everybody agrees that this

[00:13:12] Speaker 03:
disparate treatment in punishment or investigation was dismissed at screening, but Mr. Shields didn't in the joint pretrial order.

[00:13:23] Speaker 03:
His contention still wanted to have that claim brought before the jury.

[00:13:28] Speaker 03:
So how should we treat the fact that Mr. Shields doesn't think that screening order eliminated that claim?

[00:13:36] Speaker 02:
Your Honor, I think

[00:13:41] Speaker 02:
Mr. Shields just didn't understand the effect of the screening order, I think, is really what it comes down to.

[00:13:45] Speaker 02:
But we can't ignore the fact that the court said this was dismissed at screening.

[00:13:49] Speaker 02:
This never paid it past the screening stage.

[00:13:52] Speaker 02:
That's what the court said it did.

[00:13:53] Speaker 02:
And that's really what we're here to review.

[00:13:57] Speaker 03:
Can I follow up on what Judge Johnson was asking you?

[00:13:59] Speaker 03:
Because I am struggling with this, too.

[00:14:03] Speaker 03:
What facts do we consider?

[00:14:05] Speaker 03:
The facts at the time of screening or the facts at the time of judgment?

[00:14:10] Speaker 03:
in analyzing this claim?

[00:14:13] Speaker 03:
The facts at the time of screening.

[00:14:14] Speaker 02:
The screening order was evaluated based on the allegations that were before the court at that time.

[00:14:20] Speaker 02:
There's also cases in the circuit that say what's before this court for review is what is before the district court at the time that they make their decision.

[00:14:33] Speaker 02:
And though the post trial ruling, obviously that ruling was issued post trial,

[00:14:39] Speaker 02:
What she said was what she did prior to trial.

[00:14:42] Speaker 02:
I'm sorry, what the court said it did was that it dismissed the claim before trial.

[00:14:48] Speaker 02:
So I think it's clear from the post-trial ruling that the dismissal occurred at that screening stage, at that initial stage.

[00:14:57] Speaker 02:
So it's based on the allegations in the complaint.

[00:14:59] Speaker 01:
Ms.

[00:14:59] Speaker 01:
Bruce, if you could share those cases that you're looking to on this vaccine question of what we look at.

[00:15:06] Speaker 01:
I guess I just have one.

[00:15:08] Speaker 01:
follow-up to your response to Judge Koh's question in terms of the overlap of the claims.

[00:15:14] Speaker 01:
Aren't these both the tried First Amendment claim and the screened equal production claim alleged as a single count in the complaint as count one?

[00:15:25] Speaker 02:
They're, you're right, they're alleged as count one.

[00:15:28] Speaker 01:
Why wouldn't the operative facts, why wouldn't we take that, again, under a pro se pleading standard, but why wouldn't that suggest at least that the operative facts are the same for both claims, even if the elements are different?

[00:15:45] Speaker 02:
I think the operative facts, you know, the series of events that led to the discipline, I agree with you, they're the same.

[00:15:52] Speaker 02:
Again, the motive is different.

[00:15:54] Speaker 02:
And you see both of those allegations of motive both contributing to the claims in that count And again the the five elements that form a

[00:16:20] Speaker 02:
a First Amendment retaliation claim, they don't map on to equal protection.

[00:16:24] Speaker 02:
When we're talking about First Amendment retaliation, you have, you need to ask whether, you know, you have several different elements that don't neatly map on to the equal protection claim.

[00:16:36] Speaker 02:
And so even though there are similar events, the outcome isn't necessarily the same in both cases.

[00:16:45] Speaker 02:
And again, really at bottom, we're looking at the allegations and the complaints.

[00:16:48] Speaker 02:
I know I'm over time.

[00:16:50] Speaker 03:
I'll give you two minutes for rebuttal.

[00:16:52] Speaker 03:
Okay.

[00:16:54] Speaker 03:
We are going to thank you and bring you back for rebuttal and you'll have two minutes.

[00:16:58] Speaker 03:
Thank you very much, Your Honor.

[00:17:11] Speaker 00:
I'd like to thank the Court for the opportunity to address the panel.

[00:17:13] Speaker 00:
I'm Chris Davis for the Appellees.

[00:17:15] Speaker 00:
The district court properly entered judgment in favor of the NLC defendants.

[00:17:20] Speaker 00:
The district court did not err when screening the complaint when granting summary judgment and or at trial.

[00:17:29] Speaker 00:
I plan on, sorry.

[00:17:33] Speaker 00:
Is that here?

[00:17:34] Speaker 00:
I plan on going through the screening order, summary judgment, and then trial unless the court has some other order that they'd like me to proceed at.

[00:17:42] Speaker 00:
if the court pleases, I'd first like to address jurisdiction.

[00:17:47] Speaker 00:
I know I didn't raise it in my pleadings, but come to my attention that this court lacks jurisdiction over the dismissal of Shields' equal protection claim.

[00:17:56] Speaker 00:
At the screenings, because the claim was not dismissed with prejudice and he failed to seek to amend that claim,

[00:18:08] Speaker 00:
which is deemed to be a voluntary dismissal.

[00:18:10] Speaker 03:
Well, but if he didn't, if the screening order didn't dismiss it, then he didn't have to amend it.

[00:18:16] Speaker 03:
And in the joint pretrial order, he said, hey, I want this claim going to the jury.

[00:18:21] Speaker 00:
But the thing is that the district court, if you read the end of the screening order, and I think what's counsel has said, that at the end, the court goes through and delineates what claims are going to be proceeding.

[00:18:31] Speaker 00:
And the equal protection claim that he's alleging is not one of those claims.

[00:18:35] Speaker 00:
that the district court said would proceed to trial.

[00:18:39] Speaker 00:
And I have to agree.

[00:18:41] Speaker 00:
I take the district court's word that that was an issue screening the case.

[00:18:46] Speaker 00:
And he was told specifically which claims.

[00:18:49] Speaker 00:
When we filed our motion for summary judgment, we thought that claim didn't exist because we didn't move for summary judgment on that claim.

[00:18:55] Speaker 00:
I think to us it was clear, to everybody.

[00:18:59] Speaker 00:
And unfortunately, I guess it wasn't clear to Mr. Shields.

[00:19:04] Speaker 00:
It was clear to the district court and it's third was cleared to us and and so I'm just I don't know how else to respond to that But I was a different question.

[00:19:13] Speaker 03:
How does the end of discipline disciplinary segregation?

[00:19:17] Speaker 03:
Explain the decision to transfer.

[00:19:19] Speaker 03:
Mr. Shield to hide desert state prison instead of back to LCC.

[00:19:24] Speaker ?:
I

[00:19:24] Speaker 00:
Well, the reason why that he was transferred was because he was charged with compromising staff.

[00:19:32] Speaker 00:
And so they didn't want to send him back to the prison where that staff member was.

[00:19:35] Speaker 03:
But they ultimately did.

[00:19:36] Speaker 00:
They ultimately did.

[00:19:38] Speaker 00:
They ultimately determined it was.

[00:19:40] Speaker 03:
But the reason that you give for that transfer decision not being retaliatory is that he completed disciplinary segregation.

[00:19:51] Speaker 00:
No, the reason why he was transferred from one prison to another is because that's what the offender management decision made the determination.

[00:19:58] Speaker 00:
The offender management decision under the ARs is the only entity that determines who is transferred where.

[00:20:05] Speaker 00:
And we don't have in the record the reasons for why they transferred him specifically because they're not defendants in this matter.

[00:20:21] Speaker 03:
But, you know, he finished the disciplinary segregation February 22 of 2016.

[00:20:26] Speaker 03:
He doesn't get transferred to even high desert state prison until January 26, 2017, a year later.

[00:20:31] Speaker 00:
Right.

[00:20:33] Speaker 00:
And that's the, he could have just stayed at Ely State Prison.

[00:20:39] Speaker 00:
There was no obligation because they have a general population at Ely State Prison just like they have at other prisons, even though at that time Ely State Prison was our high maximum security prison.

[00:20:50] Speaker 00:
But at the time, so they could have just hit him.

[00:20:54] Speaker 00:
And that's the certainty of this, because what he's alleging is that, hey, in 2015, they decided to do this.

[00:21:00] Speaker 00:
They decided, well, what we're going to do is we're going to trump up these charges.

[00:21:07] Speaker 00:
so that we can transfer you to Ely State Prison.

[00:21:12] Speaker 00:
But rather than just keeping you at Ely State Prison, we're going to retaliate against you by transferring you to High Desert State Prison, which was a medium security prison at the time.

[00:21:22] Speaker 00:
Instead of transferring him to LCC, which is where he wanted to go, which is another medium security prison.

[00:21:29] Speaker 00:
Your Honor, prisoners just don't have the right to say whether they can.

[00:21:31] Speaker 00:
I'm sorry.

[00:21:32] Speaker 03:
Can I ask you about the due process argument?

[00:21:33] Speaker 03:
So it sounds like defendant Foster

[00:21:37] Speaker 03:
appears to be just an error, right, in reducing the sentence of the charge that was dismissed below.

[00:21:46] Speaker 03:
Well, you explain to me, what was that action then?

[00:21:51] Speaker 03:
Was that a mistake in flipping the charges and, you know, resurrecting the dismissed charge or

[00:21:58] Speaker 03:
Did that defendant make an independent decision based on the record as to what was sufficient evidence for which of the two charges?

[00:22:07] Speaker 03:
Like, what happened there?

[00:22:08] Speaker 00:
Okay, so my understanding, okay, is from my reading of the record is that he was not, he was not, the charge was not dismissed at disciplinary hearing.

[00:22:19] Speaker 03:
It just wasn't- Well, the disciplinary hearing, the transcript record is unclear.

[00:22:22] Speaker 03:
Well, it wasn't- Right?

[00:22:24] Speaker 03:
It wasn't clearly dealt with.

[00:22:26] Speaker 00:
It was that they were proceeding, what they did is they proceeded only on the one charge.

[00:22:31] Speaker 03:
But under the regulations, the... So you're contesting that the theft charge was not dismissed at the first level.

[00:22:41] Speaker 03:
But that's not clear in the record, though.

[00:22:43] Speaker 00:
Because, Your Honor, these are not court proceedings.

[00:22:46] Speaker 00:
You're treating like this, it's like a court proceeding.

[00:22:48] Speaker 00:
These are prison administrative proceedings, and they're not court proceedings.

[00:22:52] Speaker 03:
And so what- But if you're going to put somebody in disciplinary segregation, I assume they have due process rights here, which they do, and I assume then you're going to do it accurately and make a ruling on the charges.

[00:23:04] Speaker 03:
Are you saying there's no obligation on behalf of state prisons to actually make rulings on charges that are going to have serious consequences of disciplinary segregation?

[00:23:15] Speaker 00:
Oh, sorry, Your Honor.

[00:23:16] Speaker 00:
Go ahead, please.

[00:23:18] Speaker 00:
I apologize for speaking over you, Your Honor.

[00:23:21] Speaker 03:
No, no.

[00:23:22] Speaker 03:
No, no.

[00:23:22] Speaker 03:
Go ahead.

[00:23:23] Speaker 00:
Please.

[00:23:24] Speaker 00:
They do have a right obligation to make a ruling on charges if they're going to use those charges to

[00:23:33] Speaker 00:
They have an obligation to make a ruling on charge.

[00:23:35] Speaker 00:
If they're going to use that charge to impose discipline on the inmate.

[00:23:37] Speaker 01:
Exactly.

[00:23:38] Speaker 01:
Which is what the appeal says they did.

[00:23:40] Speaker 01:
That they're going to impose the theft charge, which was never found guilty on.

[00:23:48] Speaker 00:
No.

[00:23:49] Speaker 00:
But what you're on, OK.

[00:23:52] Speaker 00:
But the thing is, the regulation that you're looking at is what his

[00:23:57] Speaker 00:
what he had the obligation, what he had the opportunity to do.

[00:24:01] Speaker 00:
And I think it was an act of mercy on his part is what he was doing, is he was saying, hey, you know,

[00:24:06] Speaker 00:
I think that he shouldn't get as much punishment as he is.

[00:24:11] Speaker 00:
So what I'm going to do is I'm going to reduce the charge.

[00:24:13] Speaker 00:
And so he reduced it from the MJ-219, which is a class A offense, down to a class, I think it was a class C offense.

[00:24:19] Speaker 00:
And then instead of giving him one year of disciplinary segregation, which he didn't have a due process violation, he reduced it to six months.

[00:24:26] Speaker 00:
And if you look at the regulation, if I could find it.

[00:24:30] Speaker 03:
Wait.

[00:24:30] Speaker 03:
So is your argument that the theft charge is

[00:24:36] Speaker 03:
Less serious offense than staff compromise.

[00:24:39] Speaker 03:
That's why he switched the charges.

[00:24:42] Speaker 03:
That's right But where is that in the record?

[00:24:45] Speaker 00:
I'm hearing that for the first time Well, that's if you if you look at if you look at his his his saying he's saying that I'm changing this charge from this charge to this other charge and

[00:24:58] Speaker 01:
What's the, I guess, what's the standard of review for this, for Foster's opinion here?

[00:25:09] Speaker 01:
So I've reviewed her disciplinary record and find sufficient evidence to uphold the guilty finding for MJ-29.

[00:25:16] Speaker 01:
There was no guilty finding.

[00:25:17] Speaker 01:
We can agree with that, right?

[00:25:19] Speaker 01:
So is the, I mean, honestly just trying to understand how this works.

[00:25:24] Speaker 01:
is the appeal

[00:25:29] Speaker 01:
Asking then foster to look at the record at the underlying hearing and say there's evidence sufficient evidence here to support this charge or this charge and I'm gonna Cut you a break and uphold Not the charge that you were found guilty of at the hearing but uphold this other charge It's not lesser included or anything else, but it's just based on different facts because it'll give you a lighter punishment and

[00:25:55] Speaker 00:
right where that's and that and that's and it's and it's and it and it and it and it and it and it and it and it and it and it and it and it and it and it and it

[00:26:15] Speaker 01:
But it can't be that the rights to the initial grievance then are meaningless because they can be arbitrarily overturned on appeal based on what is, I think we agree, a finding that never occurred.

[00:26:38] Speaker 00:
To start off with, as I was saying, there are no due process rights in the grievance appeal process.

[00:26:47] Speaker 00:
That's been held by this court.

[00:26:49] Speaker 00:
It's been held by the Seventh Circuit.

[00:26:50] Speaker 00:
It's been held by the Fifth Circuit.

[00:26:52] Speaker 00:
There just simply aren't any.

[00:26:54] Speaker 00:
And therefore, you've got to start from that position.

[00:26:59] Speaker 00:
What you have to look at is you have to look at the underlying disciplinary proceedings.

[00:27:03] Speaker 00:
Was he provided due process in those underlying disciplinary proceedings?

[00:27:07] Speaker 00:
And what we have here is they concede that he was.

[00:27:10] Speaker 00:
He was provided an opportunity to present his evidence.

[00:27:13] Speaker 00:
He was provided everything that he wanted to do.

[00:27:15] Speaker 03:
But in this instance, he's being punished for a dismissed claim.

[00:27:20] Speaker 03:
Without any of those procedural protections right there was a we all agree there was no finding of guilt on the theft charge But the actual disciplinary segregation that mr.. Shields did time for was for that dismissed theft charge

[00:27:39] Speaker 03:
It wasn't, well, again.

[00:27:41] Speaker 03:
And so his punishment was based on that appeal.

[00:27:47] Speaker 03:
And in that process, he didn't have any procedural protections, right?

[00:27:51] Speaker 03:
This was just defendant Foster doing this on the precinct.

[00:27:55] Speaker 00:
Well, he did, because the procedural protections is that, for example, if what he did was say, hey, say, for example, it was reversed.

[00:28:08] Speaker 00:
Okay?

[00:28:09] Speaker 00:
And he had, they had the two charges.

[00:28:11] Speaker 00:
And he was, and they found him guilty on the lesser charge.

[00:28:14] Speaker 00:
And then he goes up on appeal and says, well, whoa, whoa, whoa, whoa.

[00:28:17] Speaker 00:
Guess what?

[00:28:17] Speaker 00:
I think you should have been convicted on the, the, the, the class A instead of the class C. And so I'm going to then say, you're now convicted of the class A offense and not the class C offense.

[00:28:30] Speaker 00:
And therefore, I'm going to increase your punishment from six months to a year.

[00:28:34] Speaker 00:
Now that would be a violation due process because

[00:28:36] Speaker 00:
He is now acting not as a grievance responder.

[00:28:41] Speaker 00:
I guess that answers your question.

[00:28:45] Speaker 00:
He doesn't have the authority to do that.

[00:28:46] Speaker 01:
So it's not just that it's a greater charge or a lesser charge.

[00:28:54] Speaker 01:
It's specifically that this is being cited to reduce his ultimate deprivation.

[00:29:02] Speaker 00:
Right, and so that's what I'm saying.

[00:29:03] Speaker 00:
So he's not being deprived of any liberty interest.

[00:29:06] Speaker 00:
In other words, a due process clause requires that you be deprived of life, liberty, or property without due process of law.

[00:29:14] Speaker 00:
Okay, he was provided due process.

[00:29:16] Speaker 00:
He got a 12 month sentence for a class A felony, okay?

[00:29:20] Speaker 00:
So he's not being deprived of anything.

[00:29:22] Speaker 00:
He's being, oh, sorry.

[00:29:24] Speaker 01:
Yeah, I mean, I guess you hopefully appreciate the concern here, Mr. Davis, that it can't be that you have a disciplinary process to which due process attaches that comes up with one result.

[00:29:41] Speaker 01:
And then a different disciplinary process, appeal, grievance, grievance of a grievance, whatever,

[00:29:49] Speaker 01:
that to which due process doesn't attach that is then free to come up with some other result.

[00:29:55] Speaker 01:
And I think your response is that as long as that second result results in a lesser punishment than the first result, it doesn't matter what reasons are given.

[00:30:08] Speaker 01:
And I mean, so this is trying to understand what's happening here.

[00:30:13] Speaker 01:
Is your position that this isn't a mistake in terms of it, but that they're actually exercising discretion, there's evidence to support both, you want a lesser punishment, I'll cut you a break and find something that wasn't found below because it gets you to the lesser punishment that it was intentional?

[00:30:35] Speaker 00:
that there's nothing in the record that says exactly how he went about it.

[00:30:40] Speaker 00:
But what is in the record is that he had the authority to do it under the NDLC regulations.

[00:30:46] Speaker 00:
And like I said, he's doing this, in my viewpoint, as an act of mercy.

[00:30:50] Speaker 00:
And I find it a little bit incredulous that he's now complaining that this is happening.

[00:30:56] Speaker 00:
I mean, if your honor wish to go,

[00:30:59] Speaker 00:
the opposite directions say, well, this is a violation of due process.

[00:31:03] Speaker 00:
I don't think they're going to be then exercising the discretion to reduce sentences.

[00:31:06] Speaker 00:
Because say, for example, they didn't do it.

[00:31:09] Speaker 00:
There would be nothing in the record to say that they violated due process.

[00:31:12] Speaker 00:
And I would remind your court that this court in Wolfe said that you shouldn't look at these proceedings as that you're not as entitled to the full penalty of rights that you are in criminal proceedings.

[00:31:27] Speaker 00:
These are not criminal proceedings.

[00:31:29] Speaker 00:
Administrative proceedings, you know, quickly to get through these cases because it's important that these cases go through in a timely manner in order to provide the punishment that they get so they can serve it and that they can impose the discipline that is necessary.

[00:31:46] Speaker 03:
I want to ask you two more questions.

[00:31:50] Speaker 03:
Let's talk about the jury instruction issue and chess, which says de novo review is not appropriate where the district court and the opposing party were fully aware of the potential problem.

[00:32:05] Speaker 03:
And in this case, looking at the transcript of the jury instruction conference,

[00:32:11] Speaker 03:
You know, it was the district court, you know, took out that Norwood deference instruction in the other jury instruction and left it in First Amendment retaliation.

[00:32:27] Speaker 03:
And there was a discussion between Mr. Rands, who was the counsel for the state, or the defendants in that case.

[00:32:34] Speaker 03:
And he specifically references that this is a deference deletion in the due process

[00:32:41] Speaker 03:
instructions.

[00:32:42] Speaker 03:
So why isn't it a situation where everyone, both the district court and Mr. Rand's opposing counsel, opposing party, were fully aware of the problem?

[00:32:52] Speaker 03:
Why shouldn't then plain error review apply?

[00:32:55] Speaker 00:
Because first of all, they weren't talking about that specific claim.

[00:32:58] Speaker 00:
They were talking about it in a different claim.

[00:33:01] Speaker 03:
And if you go through CHESS- But they were clearly aware of the issue, right?

[00:33:04] Speaker 03:
Because they take it out of the free exercise claim, but then put it in the retaliation

[00:33:10] Speaker 00:
Yeah, because retaliation actually has, okay, the reason why it wasn't raised for anybody because the retaliation claim actually has the requirement that they have to give deference to the, as part of the element of the offense in a retaliation claim.

[00:33:24] Speaker 00:
He has the burden of proving, sorry.

[00:33:32] Speaker 03:
But no one's used that Norwood instruction outside the context of Eighth Amendment claims, and even in Eighth Amendment claims, there's only a subset that you can use that instruction, right?

[00:33:43] Speaker 03:
No, your honor, it's... Well, I'm looking at the jury instruction notes that specifically say that there are certain, you know, bell case law conditions that would give you then the option of including this Norwood instruction.

[00:33:59] Speaker 03:
It doesn't... I mean, okay, let's just say for the Eighth Amendment, Ninth Circuit Model jury instruction, it only says in the appropriate case... Right.

[00:34:08] Speaker 00:
But if you look in the Hoffman case, that's at 474 Fed Appendix 507, the Hoffman case actually had an end to the amendment case and the retaliation claim.

[00:34:20] Speaker 00:
But they offered the instruction in that case.

[00:34:23] Speaker 00:
And the only thing that was challenged in that case was whether or not it was, the only challenge in that case was whether it violated his rights to have that instruction

[00:34:37] Speaker 00:
apply both to the Eighth Amendment case and the retaliation case.

[00:34:40] Speaker 00:
I mean, no, he was only alleging that the Eighth Amendment claim, applying it to his Eighth Amendment claim violated his rights to his jury instructions.

[00:34:49] Speaker 00:
But they didn't say anything about the First Amendment claim.

[00:34:51] Speaker 00:
It was kind of a given that, because it's part of the element of the crime,

[00:34:57] Speaker 03:
that that kind of instruction is always given and let and I would like you and I've got you know what what is the legitimate correctional goal in enforcing the staff compromise regulations in retaliation for filing a grievance.

[00:35:11] Speaker 00:
What is the?

[00:35:13] Speaker 03:
That's the allegation that they used the staff compromise regulation selectively against Mr. Shields because he filed a grievance.

[00:35:24] Speaker 03:
What would be any legitimate correctional goal to do that kind of retaliation?

[00:35:31] Speaker 00:
The correctional goal is not because he filed the grievance, but the correctional goal is because he compromised staff.

[00:35:37] Speaker 00:
That's where you come in with whether they have a legitimate reason for compromising staff.

[00:35:44] Speaker 03:
But his argument is that you are selectively enforcing that stamp compromise regulation against him because he filed a grievance.

[00:35:55] Speaker 03:
He exercised his First Amendment right to file a grievance.

[00:35:58] Speaker 03:
And so my question is, what is the legitimate correctional goal, excepting his theory, to do that?

[00:36:05] Speaker 03:
What's the legitimate correctional goal?

[00:36:07] Speaker 03:
To retaliate against an inmate for filing a grievance by then enforcing the staff compromise regulation.

[00:36:15] Speaker 00:
I don't think you can look at it that way.

[00:36:16] Speaker 00:
If you looked at it that way, there could never be a legitimate correctional goal.

[00:36:19] Speaker 00:
I mean, I don't think there is a legitimate correctional goal for retaliating against an inmate for filing a grievance.

[00:36:25] Speaker 00:
I mean, it's not because he's filing the grievance.

[00:36:28] Speaker 00:
The legitimate correctional goal has to be because for the underlying conduct of what he's doing.

[00:36:34] Speaker 01:
But why isn't that exactly what the instruction instructs?

[00:36:41] Speaker 01:
Say that again, Your Honor?

[00:36:44] Speaker 01:
That as Judge Coe says, I guess the concern is that the instruction says,

[00:36:49] Speaker 01:
and that the retaliation for impermeable reasons reasonably advanced a legitimate correctional goal, that it's somehow kind of almost an element here, but acts as an affirmative defense against... Well, it says in determining whether the defendant's violated plaintiff's rights as alleged, you should give deference to the person in adopting and executing policies.

[00:37:11] Speaker 03:
Well, but see, that's the thing.

[00:37:13] Speaker 03:
He is alleging that

[00:37:17] Speaker 03:
He was retaliated against by having the staff compromise regulations enforced against him because he felt a grievance and you're saying will give deference to the prison officials for doing that retaliation.

[00:37:32] Speaker 03:
That's where I'm getting a little bit confused here.

[00:37:38] Speaker 03:
If there's never any legitimate correctional goal in retaliating against an inmate for filing a grievance, then there shouldn't be any deference given to prison officials for doing that.

[00:37:49] Speaker 00:
In product says, it's plaintiff's burden to prove, right, that the absence of a legitimate correctional goal and that court should afford appropriate deference and flexibility to prison officials when evaluating the proper legitimate goal.

[00:38:01] Speaker 00:
I'm sorry, what are you reading from?

[00:38:04] Speaker 00:
That's the Ross case, 632 Fed appendix, 415, and that's quoting- Right, but all those deference cases are Eighth Amendment cases.

[00:38:18] Speaker 03:
But the thing is- They're not First Amendment retaliation cases, right?

[00:38:21] Speaker 00:
No, no, no, but that is an element that he has to prove.

[00:38:25] Speaker 00:
He has to prove that

[00:38:28] Speaker 00:
We didn't have a legitimate correctional goal for doing the adverse action.

[00:38:36] Speaker 00:
He needs to prove that we did not have a legitimate correctional goal for imposing the adverse action.

[00:38:45] Speaker 00:
And that's the thing he has to prove.

[00:38:46] Speaker 00:
And that's why he's entitled to deference is because they're entitled to deference that they had in doing that legitimate correctional goal of preventing him from and disciplining him.

[00:39:04] Speaker 00:
And so that's where you have to look at it, Your Honor.

[00:39:06] Speaker 00:
If you look at it another way, it takes out the entire element

[00:39:10] Speaker 00:
of which is an element required to prove a retaliation claim.

[00:39:14] Speaker 00:
It takes out that element because I will, I cannot, like your honor says, I don't see what legitimate correctional goal you had for retaliating.

[00:39:24] Speaker 00:
I mean, for retaliating against an inmate for exercising his First Amendment rights.

[00:39:30] Speaker 00:
I mean, that's not where the deference comes in.

[00:39:33] Speaker 00:
The deference comes in when, whether or not in disciplining him.

[00:39:38] Speaker 00:
and that they are entitled to have deference when they're doing that.

[00:39:43] Speaker 00:
And that's where the difference comes in.

[00:39:44] Speaker 03:
You're over seven minutes.

[00:39:45] Speaker 03:
OK.

[00:39:45] Speaker 03:
Thank you.

[00:39:45] Speaker 03:
Seven and a half minutes over your time.

[00:39:47] Speaker 03:
Thank you for answering all of our questions.

[00:39:49] Speaker 03:
Let me just check to make sure that my colleague doesn't have any more questions for you.

[00:39:52] Speaker 03:
OK.

[00:39:53] Speaker 03:
Thank you.

[00:39:53] Speaker 00:
And I'd just like to end saying that we're entitled to qualify immunity because there's no violation of, even if your honors are correct in the way, there's no clear established law in this area.

[00:40:01] Speaker 00:
And therefore, we're entitled to qualify immunity either way.

[00:40:04] Speaker 00:
Thank you very much.

[00:40:05] Speaker 03:
All right.

[00:40:05] Speaker 03:
Thank you.

[00:40:06] Speaker 03:
Thank you for your argument.

[00:40:16] Speaker 02:
Thank you, Your Honor.

[00:40:16] Speaker 02:
To answer Your Honor's question about the case I was referring to, that's the Kirchner case, 842nd, F2nd, 1074.

[00:40:25] Speaker 02:
In that case and the cases that come from it stand for the proposition that the appellate court looks at what was before the district court at the time it made its decision.

[00:40:35] Speaker 02:
I'll talk about procedural due process.

[00:40:39] Speaker 02:
What defendant Foster said she did was uphold the guilty finding that didn't exist.

[00:40:45] Speaker 02:
That just fundamentally violates the precepts from Wolf that the reason for the segregation in advance of the segregation, you need notice of the charges and the reasons for why the findings, the reason for the imposition of administrative segregation.

[00:41:06] Speaker 02:
Although not before the court at the summary judgment record.

[00:41:11] Speaker 03:
Could Foster make an independent judgment about whether the evidence was sufficient to warrant the theft charge?

[00:41:19] Speaker 02:
No, Your Honor.

[00:41:20] Speaker 02:
That would violate Wolf.

[00:41:22] Speaker 02:
Wolf says in advance of the punishment, you need

[00:41:28] Speaker 02:
Notice of the charges you need notice of he was he he had the full notice and had the full hearing at the first level You're saying he needs one at every single level and needs to repeat that same process no your honor But he was found not guilty at the first level so if you're reversing the not guilty charge to guilty charge on to it I'm sorry the not guilty finding to a guilty finding on appeal at that point you need notice, but what's the prejudice he was continued to stay in administrative segregation at that point and

[00:41:57] Speaker 01:
Did he stay past the point at which the new grounds on appeal set, the six months?

[00:42:06] Speaker 02:
No, Your Honor, he didn't.

[00:42:08] Speaker 02:
But his presence in administrative segregation at that point was not supported by notice.

[00:42:14] Speaker 02:
And that's really the core of the due process issue here.

[00:42:17] Speaker 03:
What if the defendant foster just made an innocent or honest mistake?

[00:42:23] Speaker 03:
Would that be a due process violation?

[00:42:25] Speaker 02:
That would still be a due process violation if it violated the notice requirement of Wolf and of its progeny.

[00:42:34] Speaker 02:
She did testify at trial.

[00:42:35] Speaker 02:
And though it's not before the court summary judgment, she did say that she wasn't empowered to change a not guilty finding to a guilty finding.

[00:42:42] Speaker 02:
So that simply also wasn't within her authority.

[00:42:49] Speaker 02:
Briefly on qualified immunity, which was raised at the end of the argument, qualified immunity isn't an issue here.

[00:42:55] Speaker 02:
The court ruled against the defendant's summary judgment on all counts with respect to qualified immunity and that was both correct and also never raised again.

[00:43:08] Speaker 03:
It wasn't raised at trial and it wasn't... Do you agree there is a legitimate correctional reason to enforce the staff compromise regulations?

[00:43:17] Speaker 02:
We're not challenging the legitimacy of the staff compromise

[00:43:21] Speaker 02:
Policy we agree that that is a policy that the prison can set We are saying you can't wield that policy in a retaliatory fashion.

[00:43:31] Speaker 02:
You can't use it as Cover or a ruse to retaliate against an inmate on the basis of their exercise, okay?

[00:43:39] Speaker 03:
Thank you for that clarification.

[00:43:40] Speaker 03:
Let me ask you one last question What's the evidence that mr.. Shields was transferred to the?

[00:43:46] Speaker 02:
High Desert State prison for retaliatory reasons instead of going back to LCC right away Your honor that evidence is in the summary judgment record at In the form of his affidavits there was two declarations that he submitted in support of summary judgment at 149 to 55 It'll be specific sure other than the fact that he was told he would go to LCC and didn't go there right away What is there?

[00:44:14] Speaker 02:
When he was initially transferred, when he initially arrived at ESP, he was told that the reason he was there was for filing grievances.

[00:44:28] Speaker 02:
You can prove the causation piece by circumstantial evidence.

[00:44:33] Speaker 02:
The reason he went to Eli, not the reason he went to high desert state prison, right?

[00:44:37] Speaker 02:
Right.

[00:44:37] Speaker 02:
But it does support the inference that he was kept out of Lovelock for that same reason, given the other circumstances that he was initially.

[00:44:43] Speaker 03:
That's speculation, isn't it?

[00:44:46] Speaker 02:
It's circumstantial, I would say.

[00:44:49] Speaker 02:
But nonetheless, circumstantial evidence can support an inference of causation.

[00:44:57] Speaker 02:
Thank you, Your Honor.

[00:44:58] Speaker 02:
We respectfully request that the court reverse the judgment of the district court.

[00:45:02] Speaker 03:
All right.

[00:45:02] Speaker 03:
I want to thank both counsel for your very helpful arguments.

[00:45:05] Speaker 03:
Thank you very much.

[00:45:06] Speaker 03:
All right.

[00:45:06] Speaker 03:
We're going to take a brief recess so counsel in the next case can get set up.

[00:45:11] Speaker 03:
And we'll be back in five minutes.

[00:45:13] Speaker 03:
Thank you.