[00:00:00] Speaker 01:
Good morning, your honors, and may it please the court, Hassan Ahmed, for Mr. Sean Moore.

[00:00:04] Speaker 01:
I'd like to reserve three minutes.

[00:00:07] Speaker 01:
Arizona correctional officers repeatedly denied Mr. Moore food, water, recreation, showers, and programming.

[00:00:13] Speaker 01:
They tossed his cell, they seized his property, and they refused his grievances.

[00:00:18] Speaker 01:
Several times they told him exactly why they were doing it, because of his protected activities.

[00:00:23] Speaker 01:
That is a classic pattern of retaliation.

[00:00:25] Speaker 01:
In dismissing his claims, the district court

[00:00:28] Speaker 01:
failed to construe Mr. Moore's retaliation claim liberally and ignored controlling precedent, a subset of his allegations.

[00:00:34] Speaker 03:
So just so that I squared away with you, it's my understanding you're not contesting the district court summary judgment order, is that correct?

[00:00:42] Speaker 01:
That's correct.

[00:00:43] Speaker 03:
So it's basically the screening order that we're talking about?

[00:00:46] Speaker 03:
Okay, thank you.

[00:00:48] Speaker 02:
And the screening order involves different defendants than the summary judgment order.

[00:00:56] Speaker 01:
There are some overlapping defendants, Your Honor, but in large part the screening order dismissed several more defendants than made it through to the summary judgment order.

[00:01:08] Speaker 03:
Because the district court screening order dismissed, I think, 73 alleged defendants, some named and some unnamed.

[00:01:16] Speaker 03:
And so how many defendants are you asking to have reinstated in this case?

[00:01:23] Speaker 01:
We're asking for reversal as to 33 of the defendants, and that's as to 16 claims of retaliation that we've laid out in the first part of our brief.

[00:01:35] Speaker 03:
And so you're not asking for all of them?

[00:01:38] Speaker 01:
In terms of reversal, Your Honor, no, we are not asking that the rest of them be reversed, but we have asked the court to vacate as to the rest of Mr. Moore's complaint so that he has the opportunity to amend on remand.

[00:01:53] Speaker 00:
So I guess I haven't lined up all the defendants with all the allegations exactly to be able to figure this out, but your brief seems to focus on the allegations where something retaliatory was said at the same time as the action, something about his complaints at the same time that they were doing whatever thing to him.

[00:02:14] Speaker 00:
There were other allegations where you'd have to draw an inference of retaliation because it wasn't as expressed.

[00:02:19] Speaker 00:
Are you appealing all of those?

[00:02:21] Speaker 00:
Are you asking us to reverse all the allegations in the complaint and say they're all retaliatory or are only the ones in your brief?

[00:02:29] Speaker 01:
The allegations that we laid out in part one of our brief are the ones that we're asking that the court reverse because those ones were the clearest in terms of all five elements of retaliation were met.

[00:02:41] Speaker 01:
but the district court still dismissed them.

[00:02:43] Speaker 01:
As to the rest of Mr. Moore's complaint where one element was, one or more elements were less clear than the others, we're asking that the court vacate under Lopez to allow him the opportunity to amend on remand so that he can substantiate those claims to the same extent that he has substantiated the claims in part one of the brief.

[00:03:05] Speaker 02:
What is your understanding of the district court's order?

[00:03:08] Speaker 02:
I mean, on what basis did she

[00:03:10] Speaker 02:
dismissed the retaliatory claims in which it was alleged that retaliatory things were said in connection with certain actions.

[00:03:21] Speaker 01:
The district court's order was at times unclear, Your Honor, but oftentimes the district court stated that Mr. Moore had failed to state a claim or failed to state a retaliatory motive.

[00:03:31] Speaker 02:
It didn't actually say why.

[00:03:32] Speaker 01:
It did not oftentimes know.

[00:03:37] Speaker 01:
Turning to the reasons for reversal, firstly, this court has continued to emphasize that after the PLRA was enacted and after Twombly and Iqbal, that the pro se prisoner plaintiffs who are raising civil rights claims have a low plausibility threshold.

[00:03:54] Speaker 01:
This court imposes a liberal construction requirement.

[00:03:59] Speaker 01:
And as to Mr. Morse… At the screening level or in general?

[00:04:03] Speaker 01:
in general, but also as to the screening stage.

[00:04:06] Speaker 02:
So what is your understanding of what happens next?

[00:04:09] Speaker 02:
I mean, if we reinstate these orders and say that they meet the screening language, which is the same as 12b6 and has been construed to be the same as 12b6, then do the defendants get to file a motion to dismiss again?

[00:04:27] Speaker 02:
I mean, not again.

[00:04:28] Speaker 02:
They haven't had a chance to file a first one.

[00:04:30] Speaker 02:
So the ones who are reinstated, do they get a chance to file a motion to dismiss ab initio, or are they now bound by the conclusion that they have stated, that they've stated a claim?

[00:04:43] Speaker 02:
That you've stated a claim.

[00:04:44] Speaker 01:
Our position, Your Honor, is that the 16 claims against the 33 defendants should survive both screening and a motion to dismiss.

[00:04:51] Speaker 01:
So if the court reverses, those claims would proceed past and the defendants would have an opportunity at summary judgment.

[00:05:00] Speaker 02:
Isn't that a strange system where the defendants don't get to file a motion to dismiss themselves and argue it?

[00:05:08] Speaker 01:
This court in the past has reversed claims outright that have been dismissed.

[00:05:13] Speaker 02:
I know we have.

[00:05:14] Speaker 02:
It seems peculiar.

[00:05:17] Speaker 02:
The defendants presumably could have, in some cases, they file amicus briefs or somehow appear at this stage.

[00:05:24] Speaker 02:
They haven't appeared at all, either in the district court or here.

[00:05:27] Speaker 01:
That's correct, Your Honor.

[00:05:30] Speaker 01:
That is how the screening statute is stated in the same terms as Rule 12b6.

[00:05:36] Speaker 01:
The standard is largely the same.

[00:05:38] Speaker 01:
The district court is applying the same liberal construction that it would in a motion to dismiss scenario as it would under screening.

[00:05:49] Speaker 02:
But with only one side briefing.

[00:05:51] Speaker 01:
That's correct.

[00:05:54] Speaker 03:
So you're not going to represent him in the district court if you prevailed and go back, right?

[00:05:59] Speaker 03:
It's just for this.

[00:06:01] Speaker 01:
We've been appointed for this appeal and our engagement with Mr. Moore continues through the conclusion of this appeal.

[00:06:11] Speaker 01:
We are not at this time representing him in the district court.

[00:06:16] Speaker 03:
Well, it's not necessarily in legal defense, but, you know, your client basically threw everything in the kitchen sink against the wall, and it was pretty undiscernible, so it made it pretty difficult.

[00:06:30] Speaker 03:
But it is a fairly low bar in terms of the screening.

[00:06:35] Speaker 03:
So I guess I'm a little bit in

[00:06:42] Speaker 03:
sort of going on with what Judge Berzon is saying, if you get the chance to go back, why doesn't he just have to do a little better job here?

[00:06:55] Speaker 01:
Well, Your Honor, we would ask that the court allow him the opportunity to substantiate any of the allegations that are not

[00:07:03] Speaker 01:
convincing to the court as having met the elements of retaliation.

[00:07:07] Speaker 01:
But Mr. Moore has, in the past, filed civil rights lawsuits.

[00:07:10] Speaker 01:
He has proceeded past screening.

[00:07:13] Speaker 03:
Well, I know he won one.

[00:07:14] Speaker 03:
And then he actually won one.

[00:07:17] Speaker 01:
Yes.

[00:07:17] Speaker 03:
And then he got the amount reduced.

[00:07:21] Speaker 03:
But he actually won some money.

[00:07:23] Speaker 01:
He did.

[00:07:24] Speaker 03:
But not to be deterred, he went on.

[00:07:27] Speaker 01:
He did, in fact, Your Honor.

[00:07:29] Speaker 01:
And in that case, he represented himself at summary judgment.

[00:07:34] Speaker 01:
and took the case to trial at which point the district court had appointed counsel.

[00:07:40] Speaker 03:
Do either of my colleagues want to ask questions now or shall we have him reserve?

[00:07:45] Speaker 03:
You can reserve the balance.

[00:07:46] Speaker 03:
Thank you.

[00:07:59] Speaker 04:
Good morning.

[00:07:59] Speaker 04:
May it please the court.

[00:08:00] Speaker 04:
My name is Daniel P. Schacht.

[00:08:02] Speaker 04:
I'm an assistant attorney general for the state of Arizona, and I'm here on behalf of the defendants' appellees who won the summary judgment, correctional officers Jorge Rivera, Joshua Nielsen, and Carlos Barrasa.

[00:08:16] Speaker 04:
As my friend noted, and as the panel has discussed, Moore is not challenging the summary judgment granted in favor of these defendants' appellees, so we don't have any... Well, you're saying you don't have a dog in the...

[00:08:32] Speaker 03:
or the horse in the race or whatever.

[00:08:34] Speaker 03:
But that being said, we were just discussing that it's sort of, it's, if we agree with the appellant that it wasn't, that it was screened out improperly and sent it back, you're going to, you're going to be right back where you were.

[00:08:51] Speaker 03:
So, I mean, wouldn't you be back in the case then?

[00:09:00] Speaker 04:
almost assuredly representing the corrections officers who have been sued, whom you've reversed the judgment as to.

[00:09:08] Speaker 04:
So yes, we would be in the case as to that, but as has been noted, we were not parties to the screening order.

[00:09:15] Speaker 04:
So we believe that that's between Mr. Moore and the court, the district court and this court.

[00:09:23] Speaker 02:
But you said in your brief that you're not even necessarily representing the people who

[00:09:30] Speaker 02:
weren't in the summary judgment.

[00:09:32] Speaker 04:
That is absolutely correct, Your Honor.

[00:09:34] Speaker 04:
We do not represent them.

[00:09:35] Speaker 04:
We cannot make arguments on their behalf in this court.

[00:09:40] Speaker 02:
But in the district court, being the Attorney General, you presumably will represent them.

[00:09:46] Speaker 04:
It's almost 100% sure that we will be representing them, depending on... But these are individual claims against them.

[00:09:54] Speaker 02:
Presumably, they could engage you or they could engage somebody else, theoretically.

[00:09:59] Speaker 04:
They possibly could.

[00:10:02] Speaker 04:
It has been our practice and I'm not aware of any of the corrections officers who have turned down our representation.

[00:10:10] Speaker 02:
So then what's your understanding of what happens next?

[00:10:12] Speaker 02:
Presumably then you will be back, they'll be back in the case and you will be representing them but you as a functional matter you may be able to file a motion to dismiss on some affirmative defense but

[00:10:28] Speaker 02:
not really on whether they stated a claim.

[00:10:33] Speaker 04:
I don't practice in the district court.

[00:10:35] Speaker 04:
I can only report what my colleagues in the office who do.

[00:10:39] Speaker 04:
And I have been informed, if my memory serves me correct, that in instances where the district court has dismissed under the PLRA screening order, our judges here

[00:10:54] Speaker 04:
disfavor motions to dismiss.

[00:10:56] Speaker 04:
In fact, I think they have prohibited them.

[00:10:59] Speaker 04:
They have basically said that their screening order stands and that if we wish to contest it, we have to file a motion for reconsideration.

[00:11:09] Speaker 04:
So there's a possibility that we could argue 12b6.

[00:11:17] Speaker 02:
limitations or something like that.

[00:11:18] Speaker 04:
I totally agree.

[00:11:19] Speaker 03:
Well, but you're here just basically saying they didn't appeal the summary judgment sets to the people that you represent, so then that, they can't be brought back in.

[00:11:28] Speaker 04:
Absolutely.

[00:11:29] Speaker 03:
On the charges for summary judgment.

[00:11:32] Speaker 04:
Absolutely.

[00:11:32] Speaker 04:
They have conceded the judgment.

[00:11:34] Speaker 03:
But that summary judgment wouldn't necessarily be law of the case to other people, right?

[00:11:38] Speaker 04:
Absolutely not.

[00:11:39] Speaker 03:
Because there could be factual differences.

[00:11:42] Speaker 03:
There may or may not be.

[00:11:44] Speaker 03:
I don't know.

[00:11:44] Speaker 03:
That would have to be up to the district court.

[00:11:46] Speaker 04:
Yes.

[00:11:46] Speaker 04:
We won on failure to exhaust mostly and a statute of limitations as to the three officers that I mentioned.

[00:11:56] Speaker 04:
As to all the other allegations, those

[00:12:00] Speaker 04:
Those are at the pleading stage at this moment and would have to be litigated if you were to send it back.

[00:12:09] Speaker 03:
Did anyone have any additional questions?

[00:12:12] Speaker 04:
All right.

[00:12:13] Speaker 04:
Thank you, Your Honors.

[00:12:14] Speaker 03:
All right.

[00:12:14] Speaker 03:
Thank you.

[00:12:21] Speaker 03:
So I guess if you lose, you don't even have anyone that's arguing to us that you should lose.

[00:12:27] Speaker 01:
That appears to be the case, Your Honor.

[00:12:28] Speaker 03:
So that might be a good position as a lawyer.

[00:12:30] Speaker 01:
It's definitely a great position to be in.

[00:12:33] Speaker 01:
I will point out to the court that two of the officers that were defendants for the summary judgment order are also defendants as to the screening order and that's paragraphs 32 and 59 of Mr. Moore's complaint.

[00:12:49] Speaker 01:
Those are claims for retaliation where he was denied recreation and showers.

[00:12:56] Speaker 01:
And those are officers Nielsen and Rivera

[00:12:59] Speaker 01:
Those are represented by the attorney general's office in this case both here and in the district court.

[00:13:06] Speaker 01:
If the court has no further questions.

[00:13:09] Speaker 03:
I don't think we appear to.

[00:13:10] Speaker 03:
Thank you both.

[00:13:11] Speaker 03:
Thank you both for your argument and non-argument.

[00:13:14] Speaker 03:
How's that?

[00:13:14] Speaker 03:
Thank you.

[00:13:16] Speaker 03:
All right.

[00:13:17] Speaker 03:
And we appreciate both of you being here and we appreciate the pro bono work for the court.

[00:13:21] Speaker 03:
Thank you.