[00:00:00] Speaker 01:
May it please the court, good morning and welcome to this special guest, Katie Chamberlain for the Human Rights Defense Center.

[00:00:06] Speaker 01:
I'd like to reserve five minutes for rebuttal.

[00:00:10] Speaker 01:
Defendants currently ban the most fundamental legal materials that prisoners need to educate and defend themselves.

[00:00:17] Speaker 01:
And defendants currently refuse to provide notice when their censorship decisions get reversed.

[00:00:23] Speaker 01:
This lawsuit seeks to stop those practices, which caused harm to HRDC and require injunctive relief.

[00:00:31] Speaker 01:
We were here two years ago, and now we're back.

[00:00:34] Speaker 01:
There are many issues in this case, and I'm happy to address any topics the court would like me to.

[00:00:39] Speaker 01:
Otherwise, I'm stuck.

[00:00:40] Speaker 02:
Can I ask if there's just a... It doesn't matter to deciding this case.

[00:00:44] Speaker 02:
I'm out of curiosity.

[00:00:46] Speaker 02:
It seems to me in looking at the case law in this area that Washington perhaps is unique in terms of how aggressive it is with its policies with regard to literature in prison.

[00:00:55] Speaker 02:
Am I right about that?

[00:00:57] Speaker 01:
You're exactly right, Your Honor.

[00:00:58] Speaker 01:
Yes.

[00:00:59] Speaker 01:
And we have evidence in the record admissions by the Department of Corrections that it's the only known case law ban in any prison in the country.

[00:01:11] Speaker 04:
I thought that was lifted, though.

[00:01:13] Speaker 01:
The case law ban, the banning of all case law from any court anywhere in the country in the world, that was lifted in 2020.

[00:01:22] Speaker 04:
So aren't we dealing with just now policy number two that deals with whether or not information regarding other prisoners can be distributed?

[00:01:31] Speaker 01:
For injunctive relief purposes, yes.

[00:01:33] Speaker 01:
That is ongoing.

[00:01:34] Speaker 04:
So what's left of policy one?

[00:01:37] Speaker 01:
So initially in 2018 there was policy one and policy two.

[00:01:42] Speaker 01:
The all-case law ban was lifted and what remains is that the state bans all case law and legal materials and citations to case law that involve a currently incarcerated Washington individual.

[00:01:59] Speaker 01:
And so that means that decisions from the Washington Supreme Court or this court or other appellate courts that decide Washington prisoner-related issues, habeas, medical care, civil rights issues, those don't get in unless the prisoner is dead or the prisoner has been released.

[00:02:19] Speaker 02:
Well, I understood that maybe policy one was still involved in the case to the extent your client is seeking damages.

[00:02:27] Speaker 01:
You're exactly right, Your Honor.

[00:02:28] Speaker 01:
We do seek damages.

[00:02:30] Speaker 01:
And this court in HRDC number one held that we have standing and that although it's moot as to injunctive relief, that there needs to be a decision on the merits.

[00:02:41] Speaker 02:
So you are still advancing a damages argument with regard to policy one.

[00:02:45] Speaker 01:
You're exactly right.

[00:02:47] Speaker 01:
We are.

[00:02:47] Speaker 04:
And damages against which of the defendants?

[00:02:50] Speaker 01:
Against both of the defendants, Your Honor.

[00:02:52] Speaker 04:
But with regard to the superintendent, I thought he was no longer in the job.

[00:02:56] Speaker 04:
And so I thought the district court held that, one, he's not part of the job, and two, there was no evidence to establish that he did anything to interfere with the distribution of case law going to the prisoners.

[00:03:08] Speaker 01:
The district court did conclude that there was no evidence to support personal participation by the superintendent here, but that was in direct violation of the Ninth Circuit's mandate in HRDC number one, in which this court held that there's a genuine dispute of fact as to Mr. Utrecht's personal participation.

[00:03:26] Speaker 04:
So I'm a visitor here.

[00:03:27] Speaker 04:
I hate to say the Ninth Circuit made a mistake, but I mean, was a mistake made earlier in the previous opinion?

[00:03:34] Speaker 01:
Oh, no, not at all, Your Honor.

[00:03:35] Speaker 01:
In the OSU case, this court made clear that when a prison official promulgates a policy and causes it to come into action in a prison, that that's enough for personal participation.

[00:03:51] Speaker 03:
But UTEC didn't design this policy, right?

[00:03:54] Speaker 03:
This was imposed by somebody else.

[00:03:56] Speaker 01:
Yes, by the Department of Corrections.

[00:03:58] Speaker 03:
Okay, but you're saying that simply by the fact that he allowed this to go forward under instructions from his superiors, that he can be liable?

[00:04:07] Speaker 01:
He not only allowed this to go forward, he issued an operational memorandum.

[00:04:11] Speaker 03:
All right.

[00:04:12] Speaker 03:
I mean, this just isn't much of a surprise.

[00:04:14] Speaker 03:
I mean, this is not a white knuckle moment that the superintendent would do what he was instructed to do.

[00:04:22] Speaker 03:
All right.

[00:04:22] Speaker 03:
So is he being sued?

[00:04:23] Speaker 03:
I'm sorry.

[00:04:24] Speaker 03:
Let's just go to the easy question.

[00:04:25] Speaker 03:
Why doesn't he have qualified immunity?

[00:04:27] Speaker 01:
Yes, sir.

[00:04:29] Speaker 01:
The district court erred in granting qualified immunity.

[00:04:31] Speaker 01:
There is no case directly on point stating.

[00:04:34] Speaker 02:
And isn't that the end of it?

[00:04:36] Speaker 01:
No, it's not.

[00:04:36] Speaker 01:
There's no case directly on point because no prison in the country has ever had a case law ban like the former one or like the current one.

[00:04:45] Speaker 04:
So that's where I was headed as well.

[00:04:46] Speaker 04:
I mean, so isn't that the end of it for his individual liability?

[00:04:50] Speaker 04:
So aren't you really seeking official capacity liability against the superintendent?

[00:04:55] Speaker 01:
We're seeking both.

[00:04:57] Speaker 01:
Both this court and the US Supreme Court have recently affirmed that, obviously, unconstitutional acts do not require a specific case on point.

[00:05:07] Speaker 01:
And what could be more obviously violating the First Amendment than censoring and rejecting and having a whole ban on case law and Washington case law?

[00:05:18] Speaker 01:
But regarding qualified immunity, I'd like to focus on Turner's personal participation.

[00:05:23] Speaker 04:
Because in evaluating decisions- So now we're diverting from the superintendent, just to be clear, to the male sergeant or whatever he was.

[00:05:30] Speaker 01:
Yes.

[00:05:30] Speaker 01:
Yes, Your Honor.

[00:05:31] Speaker 01:
In evaluating decisions on qualified immunity, of course, this court must assume that the events that HRDC contends happened did happen, if we have evidence of it.

[00:05:42] Speaker 01:
Our position is that Turner intentionally withheld the books.

[00:05:46] Speaker 01:
after the Publication Review Committee said they should be allowed.

[00:05:51] Speaker 01:
That is supported by evidence that Turner rejected the books, he asked the committee to reject them, the committee reversed them, told him the books are allowed, yet he did not notify HRDC of that decision.

[00:06:05] Speaker 01:
The notification is different than the delivery.

[00:06:07] Speaker 01:
He also didn't deliver the books, some for months, some for over a year, and some never.

[00:06:12] Speaker 01:
And no reasonable mailroom sergeant could have fairly believed under those circumstances that he could continue to withhold HRDC's books for no reason.

[00:06:23] Speaker 01:
That was clearly established in Turner v. Saffley.

[00:06:26] Speaker 03:
You have evidence in the record that Turner did this, or are we just doing circumstantial evidence?

[00:06:31] Speaker 01:
We do have evidence in the record, and this court has already decided that there's a genuine dispute of material fact as to Turner's personal participation after the committee's decision, and that evidence has to be interpreted in our favor for the purposes of determining- What's your best evidence?

[00:06:47] Speaker 03:
I'm not sure I saw any evidence in the record, so what's your best evidence?

[00:06:50] Speaker 03:
We're at summary judgment now.

[00:06:51] Speaker 03:
All discovery ought to be closed.

[00:06:54] Speaker 01:
Sure.

[00:06:54] Speaker 01:
Well, our best evidence that Turner was involved in failing to deliver the books.

[00:06:58] Speaker 01:
First of all, he had possession of the books and he testified as to that.

[00:07:03] Speaker 01:
It is also in his job description that he is responsible for ensuring delivery of the books.

[00:07:12] Speaker 01:
He didn't want the books in in the first place.

[00:07:14] Speaker 01:
He asked the committee to affirm his decision to not allow them in.

[00:07:18] Speaker 01:
And we have unrebutted evidence that all but one of the books were not delivered after the committee's decision.

[00:07:25] Speaker 01:
They trickled in over months, a year, and some never arrived.

[00:07:29] Speaker 01:
And so if Turner just decided for no reason at all that they aren't coming in even though the DOC said that they should, it's clearly established in Turner that that's not allowed.

[00:07:41] Speaker 01:
There needs to be a rational basis.

[00:07:44] Speaker 01:
And if he decided that HRDC's book shouldn't come in because he doesn't want them in his prison, that's not allowed and clearly decided by this court 20 years ago in prison legal news versus layman.

[00:07:58] Speaker 04:
Is there anything in the record to suggest that the superintendent position, there's the original one and I guess there was a replacement.

[00:08:05] Speaker 04:
Is there anything to suggest that either the original or the replacement knew what the male sergeant room was doing?

[00:08:12] Speaker 01:
Yes, Your Honor, there's no evidence in the record regarding the replacement.

[00:08:18] Speaker 01:
But as to Superintendent Utec, we did take his deposition, and there is information in the record that he is involved or responsible for reviewing complaints about the mailroom's rejection decisions, and of course that he signed the operational memorandum and asked the mailroom to follow it.

[00:08:40] Speaker 01:
Your Honors, I would like to make sure to get to Band 2 and the merits.

[00:08:46] Speaker 01:
At summary judgment, the district court failed to follow this court's precedent and the precedent established by the US Supreme Court when it failed to require the state to provide evidence to support its policies.

[00:09:01] Speaker 01:
Time and time again, this court has held that prison officials cannot rely on general and conclusory assertions to support their policies, not when the Constitution is at stake.

[00:09:13] Speaker 01:
Prison officials must provide evidence showing that the specific interest it advances for its policy was the actual reason.

[00:09:22] Speaker 04:
So didn't the district court say that specific interest was prisoner safety, that other prisoners trying to identify

[00:09:31] Speaker 04:
Cooperating individuals in the prison cells poses danger to the other prisoners?

[00:09:37] Speaker 01:
The court did not use those words or point to any part of the record.

[00:09:42] Speaker 01:
The court simply said that the DOC's concerns are real and that it's taking judicial notice of that.

[00:09:48] Speaker 01:
Prison safety is the reason articulated by the state in this case.

[00:09:53] Speaker 01:
But the state has provided no evidence that prisoner safety is the actual reason for a complete ban on case law.

[00:10:00] Speaker 01:
or for a ban on current Washington law.

[00:10:03] Speaker 03:
Are you disputing that there is a policy or practice among prisoners of papering each other and checking their backgrounds?

[00:10:11] Speaker 01:
We do not dispute that paper checking is real.

[00:10:15] Speaker 01:
The testimony provided by the state in this case is that paper checking occurs when one prisoner asks another prisoner to prove themselves, to show their own papers.

[00:10:27] Speaker 01:
Case law ban number one and case law ban number two don't address that, because the current and the former policy allow the prisoners to possess their own paperwork.

[00:10:38] Speaker 01:
And in fact, judgment and sentence documents, which is really the only thing other than police reports that has been identified by the state as being used to paper check, those are allowed.

[00:10:50] Speaker 01:
And those facts are one of many that show how irrational the response is by the government in trying to control what it purports to control, which is paper checking.

[00:11:04] Speaker 01:
I'd like to reserve the rest of my time for rebuttal, unless there are any additional questions at this time.

[00:11:09] Speaker 04:
So what publication does your group have that would fall into policy number two's rubric?

[00:11:20] Speaker 01:
Yes, Your Honor.

[00:11:21] Speaker 01:
So HRDC publishes books.

[00:11:25] Speaker 01:
They also publish two monthly magazines, Prison Legal News and Criminal Legal News.

[00:11:30] Speaker 01:
And at least several times a year, HRDC includes in its publications current Washington law.

[00:11:39] Speaker 01:
It publishes law from all over the country.

[00:11:41] Speaker 04:
I know your time's running.

[00:11:42] Speaker 04:
But does the record show that any of your publications actually include names of other prisoners?

[00:11:48] Speaker 01:
Yes, Your Honor, and there's numerous citations to the record, and those are contained in our opening brief, pages 14 and 15.

[00:11:57] Speaker 01:
Thank you.

[00:12:13] Speaker 00:
May it please the court, Assistant Attorney General Catherine Faber for the respondents, Jeffrey Utec and John Turner.

[00:12:21] Speaker 00:
This is a case about the habeas site book, which was approved by the Department of Corrections internal review committee to be let into prison facilities eight months before this lawsuit was filed.

[00:12:31] Speaker 00:
There's no case law that clearly establishes that overturning the initial rejection of the habeas site book and then failing to give notice about the overturned rejection contrary to policy violates the First or Fourteenth Amendment.

[00:12:45] Speaker 00:
As such, the defendants are entitled to qualified immunity from damages in this case, and appellant also fails to show a basis for prospective relief.

[00:12:53] Speaker 00:
This means that all claims, both for damages and injunctive relief, fail, and the district court can be affirmed.

[00:12:59] Speaker 00:
I'd like to turn first to the discussion about Washington as being unique in the policy that it has set forth, and just clarify some things surrounding that.

[00:13:06] Speaker 00:
So Your Honor was correct that the policy number one, which said no case law of any kind is permitted, that policy was changed and is no longer in effect.

[00:13:15] Speaker 00:
In fact, it was changed before this lawsuit was filed, and on the first appeal in this case, one of the issues is whether

[00:13:21] Speaker 00:
any injunctive challenge could be made to that policy, and the finding was no, that's moot, that policy's been changed.

[00:13:27] Speaker 00:
So to the extent that Washington may have been the only state to say no case law is allowed, that policy's no longer in effect.

[00:13:34] Speaker 00:
It's not true to say that Washington is the only state with the current policy, policy number two, which says you're not allowed to have materials about other incarcerated individuals.

[00:13:44] Speaker 00:
There is some indication that other states have that type of policy.

[00:13:47] Speaker 00:
Specifically, if you go to the record,

[00:13:49] Speaker 00:
Tracy Schneider, who works for DOC, was deposed and speaks about that at 7 ER 1383 to 86 in her deposition about how there are other states that have this kind of note information about other incarcerated people policy.

[00:14:04] Speaker 00:
That does include if there was case law about somebody and didn't have the name rejected, but to say that Washington stands alone in that regard is not correct.

[00:14:12] Speaker 04:
Here just to be clear.

[00:14:14] Speaker 04:
So Is the habeas manual still allowed to be delivered under policy to I mean if the habeas says us versus Gonzales, for example And identifies Gonzales.

[00:14:26] Speaker 04:
Are you allowing that or not allowing that?

[00:14:28] Speaker 00:
It is allowed, Your Honor, and we know that there's indication in the record.

[00:14:31] Speaker 00:
First, HRDC asserts that the names of any individuals within the habeas site book were redacted when they mailed it in, which I think shows an attempt to comply with that part of department policy.

[00:14:41] Speaker 00:
That is on the record at 10ER 2399.

[00:14:45] Speaker 00:
Also, John Turner, when he initially reviewed the book and did initially reject it, noted that he was rejecting it because he thought policy said case law had to be rejected.

[00:14:55] Speaker 00:
But he did not, I think, recall seeing any names.

[00:14:58] Speaker 00:
And then the member of the Publication Review Committee, which is the committee that reviewed the book, decided that there was nothing in the book that prohibited, was a safety security risk for this specific book and allowed the book in, said that she also didn't remember there being any names about currently incarcerated people in the book.

[00:15:16] Speaker 00:
That's at 10 ER.

[00:15:17] Speaker 00:
2349.

[00:15:18] Speaker 00:
And again, that book was allowed in.

[00:15:22] Speaker 00:
And turning to another point that the appellant has made, there is nothing to indicate that John Turner, the mailroom sergeant at the time, disagreed with that decision or intentionally didn't deliver the books because of that decision.

[00:15:33] Speaker 00:
In fact, he testified when speaking about it that he knew that the policy was about to change, that said no case law was allowed.

[00:15:41] Speaker 00:
He knew that the Publication Review Committee looked at things kind of from a broader angle.

[00:15:47] Speaker 00:
At 10ER 2366, he said he agreed with the Publication Review Committee's decision to overturn his initial rejection.

[00:15:56] Speaker 00:
He did not disagree with that.

[00:15:58] Speaker 00:
His testimony was also that once he got that decision, which was made on July 13 of 2020, his testimony was that on July 14, 2020,

[00:16:07] Speaker 00:
He put the books into the mailbag, which was his understanding of as far as his involvement was.

[00:16:12] Speaker 00:
That's at 10 ER 2356 to 58.

[00:16:14] Speaker 03:
He describes what he did.

[00:16:19] Speaker 00:
Not in the record, Your Honor, no.

[00:16:21] Speaker 00:
And it's, again, if it was a delay in getting them delivered or a property loss or something like that, that could give rise for those incarcerated individuals to make some kind of tort claim, a property loss claim.

[00:16:32] Speaker 00:
But the content of the book, there's no evidence in the record that the content of the book was at that time what stopped the book from getting to them.

[00:16:39] Speaker 00:
Again, the initial content-based restriction of the habeas site book was overturned when the Publication Review Committee decided to let the book in.

[00:16:48] Speaker 00:
And after that, any First Amendment claim evaporates.

[00:16:52] Speaker 00:
That is why I think the grant of qualified immunity to the defendants in this case.

[00:16:56] Speaker 02:
I'm not sure about that.

[00:16:58] Speaker 02:
So sure, you win the idea battle that this should be delivered.

[00:17:05] Speaker 02:
And then if it's never delivered, you say that the decision gets made by the committee, yes, this should come in.

[00:17:12] Speaker 02:
Our prior decision was bad.

[00:17:15] Speaker 02:
And then the First Amendment is done right there.

[00:17:17] Speaker 02:
And it doesn't matter if it's actually delivered ever?

[00:17:20] Speaker 00:
I think, Your Honor, it would come down to, if it's not delivered, who is the reason that that happened?

[00:17:26] Speaker 00:
And why did that not happen?

[00:17:27] Speaker 00:
And we have no evidence in the record that a defendant in this case was the reason the books weren't delivered.

[00:17:31] Speaker 00:
And we have no evidence it was their content.

[00:17:33] Speaker 02:
What we do know from the record, or at least that we can infer from the record, is that there's a limited number of people in the prison who are responsible for getting mail out.

[00:17:42] Speaker 02:
And the mail didn't, it wasn't received by,

[00:17:45] Speaker 02:
many people who should have received it.

[00:17:48] Speaker 02:
What are we supposed to make with those facts?

[00:17:50] Speaker 00:
I think, Your Honor, you make with it the facts that we have in front of us about defendant Turner, who has said his responsibility ended when he put them in the mailbag that was taken by someone else to the facility for delivery.

[00:18:00] Speaker 00:
And then we have no evidence of what caused these delays after, which, again, if they happened, it's regrettable, but it's not a First Amendment violation.

[00:18:06] Speaker 03:
How many people do we have in the facility?

[00:18:09] Speaker 00:
I'm not sure, Your Honor.

[00:18:09] Speaker 00:
I would estimate it's around 1,000 to 1,200.

[00:18:13] Speaker 02:
If it's one or two people that didn't get their book, then I agree with you.

[00:18:16] Speaker 02:
Maybe it's regrettable.

[00:18:18] Speaker 02:
It's more than that.

[00:18:19] Speaker 02:
It looks like not an accident that these weren't delivered.

[00:18:25] Speaker 00:
I think that's what this court is inferring, but again, if we look at the evidence that we have, that's not what we can infer because, again, defendant Turner states he agreed with the Publication Review Committee's decision, so we don't have evidence that he was doing this nefariously or had intent to delay the books.

[00:18:41] Speaker 00:
He says what he had to do was put the books in the mailbag for delivery.

[00:18:45] Speaker 00:
He says he did that and then the evidence kind of falls off a cliff and we don't have anything else about why these delays happened, what caused these people to not get their books.

[00:18:53] Speaker 00:
We do have evidence that somebody who received a book said that they didn't need it anymore and they put it on the cart for the library so that others could use it, which is good.

[00:19:00] Speaker 00:
And I think that's, when we turn to the First Amendment claims here, that's what the heart of this case is, is that the book was allowed in and HRDC was allowed to get their message

[00:19:09] Speaker 00:
to these incarcerated individuals, which is what they wanted to do.

[00:19:12] Speaker 00:
There is simply not case law to suggest that that initial period of time where the book was initially rejected by Sergeant Turner, but then that rejection was overturned, gives rise to any kind of First Amendment claim for damages.

[00:19:23] Speaker 00:
And the absence of cases that say that that's a First Amendment claim is exactly why it's not clearly established that they should be entitled to any damages here.

[00:19:31] Speaker 04:
What if any publication are you all rejecting published by this group now under Policy 2?

[00:19:39] Speaker 00:
We don't have any evidence in the record of any, Your Honor.

[00:19:41] Speaker 00:
I think there was, at a summary judgment stage below, they had HRDC raise a claim about a newsletter that was rejected for a different reason.

[00:19:50] Speaker 00:
I believe it was for containing information about how to circumvent the phone system or something like that, but there's simply not evidence other than speculative guesses about what might be rejected.

[00:20:00] Speaker 00:
about any kind of injury that they have, which is, I think, the crux of why the perspective relief argument fails, which is what the district court recognized.

[00:20:08] Speaker 00:
And looking even at the facts of this case, I think that demonstrates why their evidence, too, of what Sergeant Turner says he might have rejected is not dispositive, what will ultimately be rejected, because these publications and incoming newsletters and things go through this process, which is required by the 14th Amendment.

[00:20:26] Speaker 00:
It's how we give due process to these situations.

[00:20:28] Speaker 00:
of having an initial decision, but then somebody else reviews, somebody else reviews.

[00:20:32] Speaker 00:
And here, the initial decision didn't stick.

[00:20:35] Speaker 00:
It was on appeal.

[00:20:36] Speaker 00:
The Publication Review Committee decided to let it in.

[00:20:39] Speaker 00:
Now turning to the due process piece as well.

[00:20:43] Speaker 00:
Defendant Turner is also entitled to qualified immunity there because as is agreed by the parties I think the policy says he was supposed to give notice that the decision was overturned.

[00:20:53] Speaker 00:
He failed to do so and Sorrell versus McKee is pretty clear that any kind of decision like that which is outside of policy

[00:20:59] Speaker 00:
does not give rise to a constitutional violation.

[00:21:03] Speaker 00:
Similarly, for defendant Utecht, which this court has already brought up, there is no case directly on point that says that what Utecht did here is clearly unconstitutional or against clearly established law.

[00:21:15] Speaker 02:
I'm thinking an injunction on that point as well, right?

[00:21:19] Speaker 02:
An injunction to require notice be given?

[00:21:21] Speaker 02:
What do you think of that?

[00:21:23] Speaker 00:
Our position, Your Honor, is that there's not an irreparable harm shown because, again, the policy does require that the notice be given, and the failure in this instance for that to happen is outside of policy.

[00:21:34] Speaker 02:
So that's not—it does not demonstrate— So I was digging around on the record about this last night.

[00:21:40] Speaker 02:
So it's clear that—

[00:21:44] Speaker 02:
Mere negligence, a mistake.

[00:21:46] Speaker 02:
So you have a policy that you're supposed to give notice, and it doesn't happen.

[00:21:50] Speaker 02:
And just that a mistake happens, an inadvertence happens, sure, that's not a violation.

[00:21:55] Speaker 02:
But in the record, we have evidence that suggests that maybe this wasn't a mistake.

[00:22:01] Speaker 02:
Turner's deposition at ER 1076 to 77 says that HRDC wasn't notified of the committee's changed decision.

[00:22:11] Speaker 02:
Because quote it is not required to send a notification that an item has been overturned or not Which was his mistake and I think that there's but he's the male guy and he's the guy who's gonna Handle this I think is is it within the scope of his job to handle providing the notice it is and I think that the I don't have the exact site in mind, but the the policy when it was updated did become clearer and

[00:22:36] Speaker 00:
to include exactly, it was in kind of the passive voice before about notice will be given, but it has become clearer to suggest that the mail room is the one to give the notice, not the publication review committee or somebody else.

[00:22:48] Speaker 02:
Right, so it's a guy who's responsible for giving notice gives a deposition and says notice wasn't given because it's not required.

[00:22:54] Speaker 02:
That's not a mistake.

[00:22:55] Speaker 02:
That's a practice.

[00:22:56] Speaker 00:
It was a mistake in that he misunderstood the policy and it... I don't think that that's what we mean when we say there's no liability for a mere mistake.

[00:23:05] Speaker 00:
Okay, Your Honor, I understand that and I think it comes down to there's not evidence that that would happen again because again the policy already contemplates that it should happen.

[00:23:15] Speaker 00:
Anything he's doing outside of that is outside of policy and the mailroom sergeant or the mailroom at Coyote Ridge is to give that.

[00:23:23] Speaker 00:
Same for UTect is that there is nothing to indicate that the limited change he made to the operational memorandum

[00:23:28] Speaker 00:
in this case had any effect on the claims in this case, it was simply to add an additional person who could serve as a designee.

[00:23:36] Speaker 00:
And that, you know, the district court was also not incorrect to give him qualified immunity in that context.

[00:23:44] Speaker 00:
That's not in conflict with this court's previous decision, which in that opinion, it did say that this case was remanded to assess UTEC's individual liability and defenses.

[00:23:54] Speaker 00:
So, it was proper for the district court to then assess the defense of qualified immunity when looking at the claims against UTEC and against Turner.

[00:24:01] Speaker 03:
Counsel, I'm looking at the pages that you cited, which is 1076 to 1077 of Turner's deposition where he's asked about whether notice was given of the decision of the Publication Review Committee.

[00:24:13] Speaker 03:
Does that relate to policy number one or policy number two or both?

[00:24:19] Speaker 00:
At the time, it would have been policy number one, which was the one in effect.

[00:24:23] Speaker 00:
Policy number two is the one that had changed to that policy between when the case happened and the clause was filed.

[00:24:29] Speaker 03:
Is there a difference in the way that policy number one and policy number two treat the question of notice?

[00:24:34] Speaker 00:
I don't believe there is, ultimately, I don't have the language in front of me.

[00:24:39] Speaker 00:
I seem to remember there is also another updated version of the policy that I believe HRDC included in the record below that was changed during the pendency of this case.

[00:24:49] Speaker 00:
I believe it's that third version of policy.

[00:24:52] Speaker 00:
I don't have this set in front of me, and I apologize, but it would have been included in the briefing below that they did on summary judgment where that third version, I think, is the one that had the clearest language about who exactly was to give.

[00:25:04] Speaker 00:
Notice.

[00:25:05] Speaker 02:
Was policy number two issued before the committee reversed the initial rejection?

[00:25:11] Speaker 00:
No, Your Honor.

[00:25:12] Speaker 00:
Policy one was the one that was still in place, which again is the policy that said no case law is allowed.

[00:25:18] Speaker 00:
But the Publication Review Committee, I think the member of the committee who was deposed, described it as the committee had, they looked at the totality of the circumstances, was their view of things, and they thought even with this piece in policy that said case law was just not allowed,

[00:25:33] Speaker 00:
They didn't see any incarcerated individual names in there, which was the crux of that policy.

[00:25:37] Speaker 00:
And they thought that the publication should be let in, which is why they made that decision, even back in July of 2020 when policy one was in place.

[00:25:45] Speaker 02:
Where in the record tells me when policy number two came into effect?

[00:25:50] Speaker 00:
I don't have this site in front of me, your honor, but it should be in our briefing as the initial section of our statement of facts describes the policy one and then when the change was made to policy two.

[00:26:02] Speaker 00:
I believe it was, this all happened from April to July of 2020 in this case.

[00:26:06] Speaker 00:
I believe the change was made sometime that fall in 2020.

[00:26:10] Speaker 00:
And then this lawsuit was filed in 2021.

[00:26:16] Speaker 04:
Let's just assume that Turner, we send this back regarding Turner and his delay in getting these books out.

[00:26:24] Speaker 04:
You've rescinded policy one.

[00:26:26] Speaker 04:
Policy two, the record from your perspective just shows that none of their publications have been rejected because of names and case law.

[00:26:35] Speaker 04:
It was rejected because it had

[00:26:37] Speaker 04:
either advertisements or a way to break the phone system.

[00:26:42] Speaker 04:
What are we doing in this case?

[00:26:43] Speaker 04:
Is this just an order seeking an injunctive relief or a policy that's already been rescinded and nominal damages?

[00:26:50] Speaker 04:
Is that what this case is about?

[00:26:51] Speaker 00:
It is confusing, Your Honor.

[00:26:53] Speaker 00:
I think that's why, you know, on appeal, I think that is we've

[00:26:57] Speaker 00:
demonstrated in our briefing, but it's really this this is a cage searching for relief because this it's really a case about the habeas site book which is not Was not being restricted even at the time this lawsuit was filed and so it's this quest to find something to get damages for or injunctive relief for and Because of qualified immunity for damages and because of this lack of a demonstration that the strong injunctive relief is warranted it warrants affirming the dismissal of this action and

[00:27:26] Speaker 00:
Thank you, Your Honors.

[00:27:28] Speaker 02:
Thank you.

[00:27:37] Speaker 01:
Your Honors, as to Turner's personal participation after the committee's decision, this court already decided that issue.

[00:27:44] Speaker 01:
There's a genuine issue of material fact as to that.

[00:27:46] Speaker 01:
That's an ER 1003.

[00:27:49] Speaker 03:
Right, but you know, on summary judgment, and Judge Rice has decided that there isn't enough evidence to go to a jury.

[00:27:56] Speaker 03:
So, I'm still wondering what the evidence is that you can muster.

[00:28:00] Speaker 03:
I understand that there were great delays.

[00:28:04] Speaker 03:
Turner says, I put all the books in the mail bags.

[00:28:07] Speaker 03:
I didn't see what happened to them after that.

[00:28:10] Speaker 03:
So, what's the evidence?

[00:28:11] Speaker 03:
What would a jury decide?

[00:28:14] Speaker 01:
Well, a jury would decide, number one, that he rejected them in the first place.

[00:28:18] Speaker 01:
Actually, don't decide that.

[00:28:19] Speaker 01:
That's undisputed in the record.

[00:28:21] Speaker 03:
That's undisputed.

[00:28:22] Speaker 01:
He had them in his possession.

[00:28:23] Speaker 01:
He didn't want them in.

[00:28:25] Speaker 01:
He got reversed.

[00:28:26] Speaker 01:
And then they didn't get delivered.

[00:28:28] Speaker 01:
And so this court has already decided that that's a jury issue, because there's a genuine issue of material fact.

[00:28:34] Speaker 01:
And the district court erred.

[00:28:36] Speaker 01:
in concluding that there is no evidence in the record as to that, because this court already decided that there is.

[00:28:42] Speaker 01:
And it's actually quite compelling evidence.

[00:28:45] Speaker 01:
Also, I wanted to address the 14th Amendment.

[00:28:49] Speaker 01:
Judge Forrester, you are correct.

[00:28:51] Speaker 01:
There is no evidence of mistake here.

[00:28:54] Speaker 01:
This was a practice of the mailroom sergeant, Turner, who's in charge of the mailroom.

[00:29:01] Speaker 01:
His testimony, of course, was after this litigation was filed, when we said you failed to provide notice.

[00:29:08] Speaker 01:
And it's constitutionally required.

[00:29:09] Speaker 02:
Well, do you read his answer to cover policy one and two, or just one?

[00:29:14] Speaker 01:
It's in all of the policies.

[00:29:16] Speaker 01:
So the policy has, there's ban number one and ban number two.

[00:29:19] Speaker 01:
Those were both in the 2018 policy.

[00:29:23] Speaker 01:
And in 2020, only ban two continued.

[00:29:26] Speaker 01:
But as to notice and what's required under the policy,

[00:29:31] Speaker 01:
The actual written policy says that the mailroom must provide notice.

[00:29:35] Speaker 01:
It has always said that in all of its different versions.

[00:29:39] Speaker 01:
Yet the mailroom sergeant, who's been there for more than seven years, testified during this litigation that despite that written policy, his mailroom does not do that.

[00:29:52] Speaker 01:
Your Honors.

[00:29:53] Speaker 03:
And is that the principal justification for an injunction?

[00:29:56] Speaker 01:
For an injunction as to the 14th Amendment, yes.

[00:30:00] Speaker 01:
Of course, it's been clearly established for 50 years that when mail is rejected, there needs to be notice of an opportunity to be heard.

[00:30:09] Speaker 03:
And how can you have... Certainly with respect to prisoners.

[00:30:12] Speaker 03:
A little less clear with respect to others.

[00:30:15] Speaker 01:
Oh, with respect to publishers, that's also been established by this court's precedent as well.

[00:30:21] Speaker 01:
And in this court's first decision, of course, it decided that unless there's an showing of an undue burden to provide notice of the outcome of an appeal, it's constitutionally required.

[00:30:32] Speaker 01:
The government here.

[00:30:33] Speaker 04:
So let's go back to what you've been publishing now.

[00:30:35] Speaker 04:
So the habeas manual's getting in.

[00:30:37] Speaker 04:
What have you?

[00:30:39] Speaker 04:
Submitted to be distributed that has been rejected because of case law and you failed to get due process Notice that it was being rejected.

[00:30:48] Speaker 04:
Is there anything?

[00:30:50] Speaker 01:
As to notice and due process, there hasn't been an additional item of censorship, which has been appealed, and there hasn't been notice of that.

[00:30:58] Speaker 01:
But Turner testified that he promised that HRDC's articles containing current Washington law will not come in.

[00:31:07] Speaker 01:
So HRDC's speech has been chilled.

[00:31:10] Speaker 01:
There's not an example of a rejection of that.

[00:31:13] Speaker 01:
But we provided many examples with citations to the record and opening brief page 14 and 15 of the articles that are subject to the ban.

[00:31:21] Speaker 03:
I don't understand.

[00:31:22] Speaker 03:
What is it that Turner is saying?

[00:31:23] Speaker 03:
Is this something contrary to the policy?

[00:31:25] Speaker 01:
No.

[00:31:26] Speaker 01:
It is not contrary to the policy.

[00:31:28] Speaker 01:
As to the First Amendment, as to the case law ban, he is following the policy, which is ongoing and which is unconstitutional, in which he has censored and is continuing to censor pursuant to that unconstitutional ban the very case law that prisoners need to educate and defend themselves.

[00:31:50] Speaker 04:
But do you admit that?

[00:31:51] Speaker 04:
The reason they rejected this last publication was because it had other articles about how to beat the phone system.

[00:31:59] Speaker 01:
There is an example in the record of a censorship item involving our client's materials in which there was some sort of ad that they contended would violate some policy regarding the phone system.

[00:32:14] Speaker 01:
That's an example in our mind of them coming up with other reasons to censor, but that's not an issue here in this case.

[00:32:22] Speaker 03:
Your suit is only filed against two individuals.

[00:32:25] Speaker 03:
So if Turner got transferred out of the mail room, there would be no need for an injunction, would there?

[00:32:31] Speaker 03:
This would be Turner specific, right?

[00:32:33] Speaker 01:
No, Your Honor.

[00:32:34] Speaker 01:
That's not correct.

[00:32:35] Speaker 01:
Injunctions are as to the official office.

[00:32:40] Speaker 03:
And you did sue him in his official capacity.

[00:32:42] Speaker 01:
We sure did.

[00:32:42] Speaker 03:
OK, so this would apply.

[00:32:44] Speaker 03:
But it only applies at this facility, is that right?

[00:32:46] Speaker 01:
Yeah, the Coyote Ridge Correction Center.

[00:32:48] Speaker 03:
You don't have problems in any other facilities in Washington?

[00:32:51] Speaker 01:
Our client has, and this is in the record at Mr. Wright's declaration, has not had any other publication censored in the country for the reason that it contains the law.

[00:33:03] Speaker 01:
Your honor, if I may have 30 seconds to conclude.

[00:33:07] Speaker 01:
Okay, thank you.

[00:33:09] Speaker 01:
We're asking the court to exercise its power to issue injunctive relief to stop the ongoing censorship of court decisions and legal publications that prisoners need.

[00:33:19] Speaker 01:
to educate themselves and defend against the awesome power of the state, and to require prison officials to provide notice when their decisions get reversed on appeal.

[00:33:28] Speaker 01:
Nothing is more fundamental to the First and 14th Amendments, which protect all other rights.

[00:33:33] Speaker 01:
We're asking this court to reverse.

[00:33:34] Speaker 01:
Thank you.

[00:33:35] Speaker 02:
Thank you, counsel.

[00:33:37] Speaker 02:
Again, I thank counsel for the helpful argument in this interesting and complex case.

[00:33:42] Speaker 02:
The matter of human rights defense center versus UTEC is submitted.