[00:00:00] Speaker 02: All right, so we'll put the ten minutes on the clock for you Good morning, and may it please the court My name is Joshua tin cuff a certified law student on behalf of appellate Norman Daniels under the supervision of Peter Afrasiabi and the UC Irvine School of Law appellate litigation clinic [00:00:28] Speaker 02: I will be reserving five minutes of my time for rebuttal, and I'll be watching my clock. [00:00:32] Speaker 02: Your honors, this is a very narrow issue. [00:00:35] Speaker 02: Dismissal at Rule 12b6 is erroneous, as there is not a sufficient factual record. [00:00:40] Speaker 02: I'm sorry. [00:00:40] Speaker 05: I'm going to stop you for a moment. [00:00:41] Speaker 05: Can you stop the clock? [00:00:42] Speaker 05: So you want to divide your time. [00:00:43] Speaker 05: This is what I was asking when we began, between opening and rebuttal, and then have a second rebuttal argument. [00:00:48] Speaker 02: Sorry, your honor. [00:00:49] Speaker 05: That's my... So you're taking the full 10 minutes now. [00:00:52] Speaker 02: Yes, taking the full 10 minutes right now. [00:00:53] Speaker 05: Thank you. [00:00:54] Speaker 05: Thank you for the clarification. [00:00:56] Speaker 05: We start the clock again. [00:00:59] Speaker 02: This is a very narrow issue. [00:01:01] Speaker 02: Dismissal at Rule 12b6 is erroneous due to the fact that there is not a sufficient factual record to conduct a Turner analysis based on these facts. [00:01:09] Speaker 02: The court has held that in Tiedemann v. Blackancy, a sufficient factual record is required to begin to conduct any sort of Turner analysis on the four-factor Turner test. [00:01:18] Speaker 02: At this case, we do not have a sufficient factual record. [00:01:21] Speaker 02: What we do know on this case is that Norman Daniels was [00:01:25] Speaker 02: at one point allowed to communicate with Mr. O'Neill. [00:01:28] Speaker 02: He asked to correspond with Mr. O'Neill. [00:01:30] Speaker 02: They then denied his correspondence. [00:01:32] Speaker 02: When he asked why this denial happened, they simply cited to 3139F, a regulation that merely tells the facility the restrictions they can place on speech, rather than giving them any sort of mechanism to do so. [00:01:48] Speaker 02: He sent this appeal multiple times, and multiple times they kept citing to 3139F. [00:01:55] Speaker 02: That is the factual record, John. [00:01:57] Speaker 02: There is no factual record based on as to why there was this denial, what Norman Daniels did, what was to happen. [00:02:05] Speaker 02: All of these facts are essential in conducting a Turner analysis based off of whether or not there was legitimate penological interest to [00:02:13] Speaker 05: Prohibit this speech Can I know ask you a preliminary question? [00:02:18] Speaker 05: Are you so you filed a? [00:02:22] Speaker 05: Replacement or supplemental brief to replace mr. Daniels per se brief and in the per se brief he advanced claims for conspiracy and due process violations but the NADA and the replacement brief makes a first amendment argument are all of those issues at play or are we just dealing with the first amendment issue and [00:02:41] Speaker 02: Your honor, we're not conceding any of the issues that Mr. Daniels alleged in his first brief. [00:02:46] Speaker 02: However, for our supplemental brief, we chose to focus mainly on the First Amendment claims at this time. [00:02:53] Speaker 02: But we hold open the other claims as they are. [00:02:56] Speaker 05: And you're just submitting those claims on his brief? [00:03:00] Speaker 02: Yes, your honor. [00:03:03] Speaker 02: Without a sufficient factual record, the court cannot begin to conduct this analysis. [00:03:08] Speaker 02: In Tiedemann v. Blackancy, the court held that they could not begin to determine whether or not 200 minutes was sufficient in a prohibiting communication over cell phones, over prison phones. [00:03:21] Speaker 02: They felt that there was not enough of a record to determine whether or not 200 minutes was sufficient, what minutes would be sufficient, or why they should limit it in the first place. [00:03:30] Speaker 02: In this case, we have no reason as to why the facility might have limited Mr. Daniels' speech, why they may have denied this, or any of their reasoning set out within. [00:03:39] Speaker 05: So is your argument that they have to have a reason and that they also have to notify Mr. Daniel of the reason? [00:03:48] Speaker 05: Or is it sufficient if they could point to a reason, a penological interest in denying the correspondence? [00:03:54] Speaker 02: Your Honor, we feel that at a Rule 12 hearing, they must have given a reason or at least point to a penological interest. [00:04:00] Speaker 02: In this case, there is none. [00:04:01] Speaker 02: They have not pointed to one, nor have they given a reasoning. [00:04:04] Speaker 02: At a Rule 12 hearing, as this Court has held, the lights must be construed most liberally to the plaintiff's complaint, especially when they are a pro se plaintiff. [00:04:12] Speaker 05: But what I'm asking you is, are you arguing that they were also required to notify Mr. Daniel of that reason? [00:04:19] Speaker 02: Your honor we don't feel we are not arguing that they are necessarily required to notify mr. Daniels however We are arguing that if they are wanting to succeed on a rule 12 motion to dismiss they must give a reasoning In this case not has been offered might give meaning to the court or give to mr. Daniels a court reasoning would have been sufficient and at this point we believe they have not done that either let me ask you this if you're right on these points and [00:04:45] Speaker 01: What happens in qualified immunity? [00:04:47] Speaker 01: Is there a specific case, and is it Turner, that says you have to point to a reason or give a reason? [00:04:56] Speaker 01: What's your response to the argument that even if you're right as to a constitutional violation, there still is no clearly established precedent to get around qualified immunity? [00:05:07] Speaker 02: Well, Your Honor, at this point, the qualified immunity argument is unwarranted. [00:05:11] Speaker 02: That's an affirmative defense. [00:05:13] Speaker 02: We're not even at summary judgment, Your Honor. [00:05:14] Speaker 02: This is at Rule 12b6 hearings. [00:05:17] Speaker 02: We're merely trying to state that we need to get to a summary judgment portion, at which point they can bring in these affirmative defenses as they would like to. [00:05:25] Speaker 02: But at this point, it is premature to bring in these defenses. [00:05:29] Speaker 05: What is your client seeking? [00:05:32] Speaker 05: Is he seeking injunctive relief, money damages, or both? [00:05:37] Speaker 02: Your Honor, at the time of filing, he was seeking an injunction. [00:05:39] Speaker 02: At this point, we are seeking monetary damages for the distress that has caused Mr. Daniels being an incarcerated individual having his First Amendment rights limited in this way. [00:05:49] Speaker 05: So you're no longer advancing a claim for injunctive relief? [00:05:53] Speaker 02: Your Honor, at this time, an injunctive relief would not be appropriate. [00:05:55] Speaker 02: Mr. Daniels is not in the facility. [00:05:59] Speaker 02: I see. [00:06:02] Speaker 02: Dismissal at Rule 12b6 is premature without the factual record. [00:06:06] Speaker 02: The court has held this in many different First Amendment cases, Tiedemann v. Blackancy as pointed out, but as well as also in Ward v. Walsh and Shakur v. Shariro. [00:06:15] Speaker 02: This court has held that when trying to establish a First Amendment argument, they must first have a factual record to begin to conduct this analysis. [00:06:24] Speaker 02: Looking at what the factual record is, the court must take the light most favourable to the plaintiffs, as established by the Supreme Court in Salisbury Bower and Haynes v. Kerner. [00:06:34] Speaker 02: As well as also Mr. Daniels being a pro se litigant, the court must accept plaintiffs' factual allegations as factual and liberally construe them in the light even though they are unartfully pled. [00:06:48] Speaker 02: Mr. Daniels, being a pro se litigant, was not able to fully artfully plead his case in this matter. [00:06:53] Speaker 02: However, the facts he stated do hold true that there was no general ban on speech as proffered by opposing counsel. [00:07:02] Speaker 02: There was no reason for this denial outside of an arbitrary reasoning. [00:07:06] Speaker 02: And when asked for a reason, the only statement given by facility and at all points through this proceedings has been citing to 3139F. [00:07:16] Speaker 02: There was no other factual record given, no basis that they had this denial, merely an arbitrary reason. [00:07:22] Speaker 02: At this point, Your Honor, there's too many known unknowns to continue to develop an actual record on this case to begin conducting an analysis. [00:07:32] Speaker 00: Sure. [00:07:32] Speaker 00: I do want to ask a little bit about the allegation that Mr. Daniels has made clear that he's bringing in as applied challenge here, so he's not challenging [00:07:45] Speaker 00: the actual policy such as it is somewhat vague. [00:07:49] Speaker 00: And then I think in your briefing you also stated as an as-applied claim. [00:07:53] Speaker 00: So then how does that affect the Turner analysis? [00:07:58] Speaker 00: What does the defendant have to show to meet Turner? [00:08:02] Speaker 00: Does it have to show that the reasons for applying the policy to restrict the communication between [00:08:10] Speaker 00: Mr. Daniels and the other inmate that that in itself served illegitimate Penological interest or just that it would comply with the policy [00:08:20] Speaker 02: Your honor, they need to show that as applied, this challenge would suffice to be a penological interest. [00:08:29] Speaker 02: The regulation they cite to does not create a valid, legitimate ban on speech. [00:08:35] Speaker 02: Merely it states what they can do to restrict speech. [00:08:38] Speaker 02: However, it gives no mechanism to do so. [00:08:40] Speaker 02: So in this case, we have to look at what was applied, how the regulation was applied, and how they did prohibit the speech. [00:08:47] Speaker 02: And if they did so, [00:08:49] Speaker 02: Was that related to a legitimate penological interest or was it simply an arbitrary decision made by one of the staff members at the facility? [00:08:56] Speaker 02: For that case, we need to then look at the factual record of which there is none provided by opposing counsel. [00:09:03] Speaker 05: So what mechanism do they need to lay out in the regulation? [00:09:07] Speaker 05: Because regulation talks about restriction of mail, right? [00:09:10] Speaker 05: And says the people to whom it could be restricted, family members, et cetera. [00:09:16] Speaker 05: But it seems clear it's talking about restricting mail. [00:09:19] Speaker 05: What more do you think they need to advance in the regulation? [00:09:23] Speaker 02: Well, Your Honor, the regulation proffers no reason for this. [00:09:26] Speaker 02: They state they can. [00:09:27] Speaker 02: That is still an arbitrary reason. [00:09:30] Speaker 02: If they could do that and they feel that whenever they want to they can, that does not satisfy a Turner analysis. [00:09:36] Speaker 02: They must still provide a legitimate penological interest. [00:09:39] Speaker 02: Merely giving permission does not allow for any sort of reasoning behind it. [00:09:45] Speaker 02: In this case, they have not provided that reasoning. [00:09:47] Speaker 02: They merely stated, we can prevent your speech, so we're going to. [00:09:52] Speaker 01: If they had a legitimate epidemiological interest but didn't want to tell Daniels what it was, would they satisfy Turner by saying, we have an interest, we're not going to tell you what it is, we're not going to let you send this mail, and then when Turner sues, they can present that interest to the court and explain what it is to the court. [00:10:13] Speaker 01: Would that satisfy Turner? [00:10:14] Speaker 02: Your Honor, if they've provided a factual record to the court that they can conduct a Turner analysis on, [00:10:19] Speaker 02: That may be enough to satisfy it without knowing the full facts of what the denial was. [00:10:24] Speaker 01: You're not arguing that they had to tell Daniels, but you're arguing that they never even presented to the court that they've done that analysis, let alone proven that they had a epidemiological interest. [00:10:35] Speaker 01: Yes, Your Honor. [00:10:36] Speaker 02: We are saying that they have not provided any sort of reasoning towards the court, and if they had wanted to, at any stage, especially at a Rule 12b6 hearing, they must give a reason. [00:10:45] Speaker 02: Otherwise, the court must look at the facts in light most favorable to the plaintiffs. [00:10:50] Speaker 01: How could they have done that at 12b6 if the allegation in the complaint is you had no interest? [00:10:55] Speaker 01: How could they possibly respond to a 12b6 by presenting what their interest was, given that we're going outside the four corners of the complaint? [00:11:03] Speaker 02: I say I'm out of time if I may answer this question. [00:11:09] Speaker 02: Going outside the corners of the complaint, they don't necessarily need to give outside the corners of the complaint. [00:11:14] Speaker 02: I believe opposing counsel has filed three or four different briefs in this matter. [00:11:19] Speaker 02: And at each point, they could have pointed to some sort of penological interest within the facility, some sort of communication that they were interested in, some sort of activity that they were wanting to monitor. [00:11:30] Speaker 02: And at no point in four different opportunities to do so did they offer anything. [00:11:34] Speaker 02: They merely stated, we were allowed to do what we did because the regulation allows us to. [00:11:39] Speaker 02: That is not a legitimate penological interest. [00:11:41] Speaker 05: That is merely stating that we can, we're going to do it because we simply can, which is just... I think to follow up on Judge Simon's point, what you're suggesting is they could have just argued that interest, but then wouldn't you be standing before us and tell us that there's nothing in the record to support that? [00:11:56] Speaker 05: There needs to be some record evidence, not just counsel's argument. [00:11:59] Speaker 02: Your Honor, if they had offered... [00:12:03] Speaker 02: Your Honor, at this point, hypothetically speaking, if they had offered any sort of arguments, we could maybe look at whether the credibility of those arguments are sufficient. [00:12:11] Speaker 02: However, that is a hypothetical, because we know for a fact that they haven't. [00:12:15] Speaker 01: Or maybe they should have just filed a motion for summary judgment, if they had an interest. [00:12:18] Speaker 02: Possibly would have been the appropriate mechanism, Your Honor. [00:12:22] Speaker 05: All right. [00:12:23] Speaker 05: Thank you. [00:12:23] Speaker 02: Thank you. [00:12:39] Speaker 03: May it please the court, Deputy Attorney General Ari Scheps for defendants. [00:12:43] Speaker 03: This case concerns inmate to inmate correspondence and is directly governed by Turner v. Safely, with Supreme Court upheld prison policy [00:12:50] Speaker 03: that restricted communication between inmates at different institutions, yet provided that discretionary exceptions could be made upon an inmate's request. [00:12:59] Speaker 03: California's regulation, section 3139, is nearly identical to the one in Turner. [00:13:04] Speaker 03: Now, Supreme Court in Turner held that limiting communications between inmates who are not family members or joint litigants [00:13:10] Speaker 03: Are you suggesting that's a bright-line rule from Taylor? [00:13:18] Speaker 05: That means that a correctional facility can always just restrict correspondence under these circumstances? [00:13:28] Speaker 03: So, yes, we would say that it is a bright-line rule that restricting communications between felons or individuals on parole, sorry, not felons, individuals who are incarcerated, is bright-lined and protected by Turner because of the inherent security concerns which, as the Court stated, the prohibition on correspondence between institutions is logically connected to these legitimate security concerns. [00:13:54] Speaker 05: But didn't the Court and Turner list some factors to consider? [00:13:58] Speaker 03: Yes, the court did list factors. [00:13:59] Speaker 05: So why do we consider factors if it's a bright-line rule? [00:14:02] Speaker 05: When we just say it's correspondence between two inmates, it's done. [00:14:05] Speaker 03: Well, so the factors, Aladdin and Turner, are other shipments for limiting all kinds of speech. [00:14:12] Speaker 03: They're evaluated in multiple contexts. [00:14:15] Speaker 03: And one of those factors is, is there a legitimate penological interest? [00:14:19] Speaker 03: But as it comes to inmate-to-inmate communication, the legitimate penological interest is inherent in the fact that [00:14:25] Speaker 03: you have two inmates at different communications, uh, institutions that are communicating. [00:14:29] Speaker 03: That itself is a safety concern. [00:14:31] Speaker 01: So are you arguing that, or are you saying that Turner holds, among other things, that a prison can always, without more, restrict inmate to inmate communications, even at other institutions, without having to show anything, without having to, uh, show any particular reason, um, just because of the inherent nature of inmate to inmate communications, [00:14:54] Speaker 01: They don't have to, and they could allow it, but they could restrict it without showing any more. [00:15:00] Speaker 01: Is that what you're saying Turner holds? [00:15:02] Speaker 03: Well, I would say that Turner holds that you don't need additional justifications beyond the inherent safety considerations. [00:15:08] Speaker 03: And in going with that, I would say if you look at the lower court's decision in Turner, which was then upheld by it, the prison provided the justification that the communication between the Turner and his intended correspondence was not in his best interest. [00:15:28] Speaker 03: That was not why the Supreme Court, though, upheld the restriction regulation. [00:15:32] Speaker 03: So it's clear that even if a different explanation is given, [00:15:39] Speaker 03: Thus, it's acceptable. [00:15:41] Speaker 03: It would stand to reason that if no additional explanations are given, it's still reasonable. [00:15:45] Speaker 05: So what about the fact that they let him have this correspondence before? [00:15:49] Speaker 05: That he was able to correspond with an inmate in another facility. [00:15:53] Speaker 05: Why does that not suggest that this is being applied in an arbitrary and inconsistent manner? [00:15:59] Speaker 03: Well, so there's no requirement under Turner that all prison officials or all institutions apply the same regulations exactly the same way. [00:16:07] Speaker 03: And indeed, in Turner, it was noted that the prison at issue [00:16:11] Speaker 03: applied its regulation to its inmate population significantly more strict than any other prison. [00:16:16] Speaker 05: But here, I mean, you keep talking about Turner, but here there's nothing in the record that articulates a penological reason for restricting Mr. Daniel's correspondence. [00:16:27] Speaker 05: Correspondence he was allowed to previously pursue. [00:16:30] Speaker 05: And if there were a blanket penological concern about this correspondence, it would seem that the record should reflect that he was never allowed to do this. [00:16:37] Speaker 05: But it doesn't show that. [00:16:38] Speaker 05: And I don't know how you get around that. [00:16:41] Speaker 03: Well, again, I think it's the fact that different staff members are able to evaluate things differently and are able to interpret. [00:16:48] Speaker 00: What standards are they using? [00:16:50] Speaker 03: They're using number standards. [00:16:53] Speaker 03: But in general, what's required from them is simply, is there a legitimate penological interest, which is all inherent interest. [00:17:02] Speaker 00: Why isn't that a factual question in this case? [00:17:05] Speaker 00: This is an as applied challenge. [00:17:07] Speaker 00: Certainly from the allegations of the complaint, there is not a categorical ban on all inmate to inmate correspondence. [00:17:16] Speaker 00: So then there has to be, I think the courts have been clear, when you have an as applied challenge, you cannot have arbitrary or discriminatory application. [00:17:29] Speaker 00: So then we have sometimes some inmates are allowed to correspond, sometimes they're not. [00:17:33] Speaker 00: How on this record are we supposed to be able to tell whether the application, the allowance in some cases, disallowance in others is not arbitrary or discriminatory? [00:17:46] Speaker 03: Well, first of all, I would say that plaintiff did not, if that was something that plaintiff was going for, he did not properly plead that in his complaint, in that while he does mention that other inmates were given approval, he doesn't provide facts about what those inmates' situations were, what... His complaint was pro se, right? [00:18:06] Speaker 01: And Ninth Circuit law does require that they be liberally construed. [00:18:10] Speaker 01: And he does talk about that some inmates could do it and some inmates couldn't. [00:18:14] Speaker 01: He even says that he was allowed to at one point and then later prohibited. [00:18:17] Speaker 01: If the if the prison said, all right, we're gonna let you send inmate to inmate communication, but not you. [00:18:26] Speaker 01: And they never explain it. [00:18:28] Speaker 01: Doesn't that violate principles against arbitrary application of rules? [00:18:33] Speaker 03: Well, I would say, well, yes, while plaintiff was pro se, I mean, just because he is pro se is not a free pass to leave out. [00:18:40] Speaker 01: But it's a liberal construction pass. [00:18:42] Speaker 03: Yes, it is a liberal construction, but it still does not allow the court to provide the essential elements, which plaintiff did not provide in this. [00:18:49] Speaker 00: Let's say we disagree with that reading of the complaint. [00:18:52] Speaker 00: We find the allegations are specific enough to show that there was at least an inference of arbitrary discriminatory application. [00:19:01] Speaker 00: Why doesn't... How does the defendant meet its burden under Turner on the pleadings in this case? [00:19:07] Speaker 03: Well, on two factors. [00:19:08] Speaker 03: One, the fact that in Partina v Martinez, which goes into this, the only things that are required for these types of rejections and censorship are notifying the individual the rejection of the letter, allowing the offer reasonable opportunity protest decision, and referring to the complaint, which is what happened here. [00:19:26] Speaker 01: No, they didn't notify Daniels of why he can't send it. [00:19:29] Speaker 03: Well, they notified him that his request had been denied. [00:19:33] Speaker 01: But they never told him why, so that he can't tell whether it's arbitrary or not, or whether there is or is not a epidemiological interest that he can contest. [00:19:41] Speaker 03: But if that was something that he believed, he had due process abilities, which he did, which is arguing it before other individuals. [00:19:51] Speaker 01: And no one ever told him why he was not being allowed to do it now, even though he could earlier. [00:19:56] Speaker 03: But that's not a requirement. [00:19:58] Speaker 03: What's required is that he had the opportunity to have it reviewed, and he reviewed it under three different prison officials. [00:20:03] Speaker 00: Even assuming he was not entitled to get a reason from the prison itself, how do you meet your burden now before this court to show that there was a legitimate penological interest for denying his correspondence request? [00:20:17] Speaker 03: Well, I would say that, one, I think the inherent theological interest is just inherent in how Turner holds that. [00:20:24] Speaker 05: So what you're saying is that any time you have an incarcerated person, the facility at which they are detained can deny their First Amendment right to correspond with somebody just because they're an inmate in a facility? [00:20:37] Speaker 05: i would say that i wouldn't phrase it that way i would say that i mean that's the import of what you're suggesting with this bright line rule that there doesn't have to be some tied to uh... you know escape plans drug smuggling gang activity you know the the president has come forward with anything to suggest look this is uh... potential risk and dangerous and so we're not going to allow it instead they can just say you're an inmate so sorry you don't get to correspond i mean isn't that the import of your bright line test i would say that the import of my uh... position is that [00:21:07] Speaker 03: when inmates to inmate communication is undoubtedly a spur to further criminal activity inherently. [00:21:15] Speaker 00: But you allow some. [00:21:17] Speaker 00: And so that's the problem here, right, is that you haven't said we've made a decision categorically, inmate to inmate correspondence. [00:21:27] Speaker 00: The risk of it leading to criminal activity is too great. [00:21:30] Speaker 00: We bar it all. [00:21:32] Speaker 00: I would maybe [00:21:34] Speaker 00: find that we could be having a different conversation, but here there's some. [00:21:40] Speaker 00: Some that the prison says okay, some that the prison says not okay. [00:21:44] Speaker 00: With no apparent explanation on this record, how is the dismissal on the pleadings at this point appropriate when the court has said, courts have repeatedly said you can't have arbitrary or discriminatory application of a policy? [00:22:01] Speaker 00: And that when there can be, [00:22:04] Speaker 00: you know, essentially a claim that an application is not enforced even handedly. [00:22:10] Speaker 00: I mean, if under your interpretation, they could just, they could say the reason why we're gonna, they could have in the back of their minds a secret reason, the reason why I'm denying this in me is because I'm retaliating against them first amendment rights or because I don't like their religion. [00:22:26] Speaker 00: But never have to say it and allow some and not others. [00:22:31] Speaker 03: Well, I would say that's where the due process considerations go, including the fact that they get to have it reviewed by other individuals beyond the first individual. [00:22:39] Speaker 03: So if there was a situation where one officer was retaliating, that decision gets reviewed by multiple officers. [00:22:45] Speaker 01: What if the whole institution chooses to retaliate against him because he files lots of complaints? [00:22:52] Speaker 03: I think that's a hypothetical that I think is very just outside the norm. [00:22:59] Speaker 03: I think that the standards under Partino are just very clear that what plaintiff is entitled to are the due process protections, which he received. [00:23:08] Speaker 03: And I'd also argue that, regardless of all this, based on these decisions, defendants are entitled to qualified immunity because, with the simple fact that following turn or following procedure. [00:23:18] Speaker 01: So what's your response to your colleagues? [00:23:23] Speaker 01: opposing counsel's statement that it's premature to consider qualified immunity because that's an affirmative defense and Maybe you're right that you'll get qualified immunity down the road, but we're here on a grant of dismissal based on 12 12 p6 [00:23:39] Speaker 03: Well, this court has the authority to rule on qualified immunity at a first instance. [00:23:45] Speaker 03: So I think it's irrelevant whether it be procedurally proper how the district court would handle it. [00:23:51] Speaker 03: This court has the authority to determine qualified immunity. [00:23:53] Speaker 01: Is there a case you can point to, a Ninth Circuit case you can point to, where qualified immunity has been applied in response to a 12b6 at this stage? [00:24:07] Speaker 03: There is not a specific case I can point to. [00:24:10] Speaker 03: However, as discussed in our brief, it is something the court has the authority to do. [00:24:16] Speaker 03: I don't have a specific case where it was. [00:24:18] Speaker 05: But you did not move for summary judgment on the basis of qualified immunity before the district court, correct? [00:24:25] Speaker 03: No. [00:24:26] Speaker 05: Okay. [00:24:26] Speaker 05: So now you're asking us to do that on an undeveloped record and in the first instance? [00:24:31] Speaker 03: I'm saying this court has the authority to do that and I'm saying that based on Turner, based on Proctiner, those are, the tenants are entitled to qualified immunity and that with this court having that authority, it is something that it may consider. [00:24:45] Speaker 00: Considering the allegations in the light was favorable to the plaintiff and you have a claim for First Amendment violation of arbitrary and just or discriminatory application of Policy prohibiting inmate to inmate communication. [00:25:02] Speaker 00: I think that I mean there's you would have to say it was not clearly established and [00:25:07] Speaker 00: that a prison can't arbitrarily or discriminatorily suppress an inmate's right to communicate with another inmate? [00:25:18] Speaker 03: Well, I would say that with qualified immunity, [00:25:25] Speaker 03: The question is, are there cases which would clearly show an officer that their conduct was unlawful? [00:25:34] Speaker 03: The complaint doesn't allege retaliation. [00:25:37] Speaker 03: It's not a retaliation matter. [00:25:40] Speaker 01: This is not a... How do we know it's not a retaliation matter? [00:25:45] Speaker 01: I mean, if the officers wanted to retaliate against someone, Daniels, because he files lots of complaints and everybody in the prison officials knew that, that might very well be a retaliation matter. [00:25:58] Speaker 01: You would then move for summary judgment for qualified immunity. [00:26:02] Speaker 01: They'd be entitled to some, plaintiff would be entitled to some discovery to find out why did you do it. [00:26:07] Speaker 01: And if they could create a disputed issue of fact, a genuine issue of fact on retaliation, you might not get qualified immunity, right? [00:26:15] Speaker 01: Well, if that was the case, then plaintiffs should have pled that. [00:26:18] Speaker 03: we don't you don't lead a response you don't have to plead a response to an affirmative defense in a opening complaint to you no but but there is no retaliation are at least from my reading of the play i do not mean i'll see the pros a complaint so there uh... there are definitely but in my reading of the play i do not see an retaliation allocation uh... i see an arbitrary i see a violation of it i don't see any retaliate so if that is a clean the plane to want to pursue he had multiple opportunities to do so [00:26:49] Speaker 03: And I guess I would last want to just touch on the case that plaintiff did discuss, Tieterman v. Blackinson. [00:26:58] Speaker 03: So one distinction that I want to distinguish between that and this case is that in Tieterman, the challenge was based on a 300-minute phone cap, not based on no communication whatsoever. [00:27:11] Speaker 03: So the key distinction there is that it's very different to say you're allowed to send five letters, but not six, because obviously there's no safety or security concern in adding additional letter. [00:27:22] Speaker 03: So Teenerman does not change the rule or the way this case should be evaluated. [00:27:27] Speaker 03: Additionally, it doesn't concern inmate to inmate correspondence. [00:27:30] Speaker 03: I mean, it may in some instances, but broadly it just concerned inmate to anyone correspondence. [00:27:36] Speaker 03: So with that, if there are no further questions, we ask that you affirm. [00:27:41] Speaker 03: Thank you. [00:27:41] Speaker 05: Thank you. [00:28:12] Speaker 04: May it please the court, Mark Berger, certified student on behalf of Appellant Norman Daniels, under supervision, Gira Fraziabi, UC Irvine School of Law, Appellate Litigation Clinic. [00:28:25] Speaker 04: The government has stated that this case is identical to Turner or the regulation is identical to Turner, but I would argue that is not the case. [00:28:35] Speaker 04: Turner was decided with a fully developed factual record. [00:28:42] Speaker 04: There were testimony from prison officials. [00:28:45] Speaker 04: Witnesses testified about growing prison game problem at the prison. [00:28:50] Speaker 04: as well as the use of the rent facility to provide protective custody for inmates. [00:28:56] Speaker 04: The case is very distinguishable from a 12B6 dismissal. [00:29:01] Speaker 01: If the state put out or the prison put out a regulation that says there will be absolutely no prisoner to prisoner communications allowed [00:29:13] Speaker 01: because we are concerned about improper risks unless you fit within the narrow exceptions of 3139F. [00:29:23] Speaker 01: Where would you be? [00:29:24] Speaker 01: Would there be a problem then? [00:29:27] Speaker 04: Actually, at rents, the district court found that the rule was practiced is that inmates were not allowed to correspond. [00:29:36] Speaker 01: Right, so if they put out a regulation, let's say the regulation would be 3139 F star and it would say no inmate to inmate communications period unless you meet one of the F12 or three exceptions. [00:29:52] Speaker 01: And that was their uniform non... [00:29:55] Speaker 01: arbitrarily enforced practice. [00:29:58] Speaker 01: What would Turner say about that, if anything? [00:30:00] Speaker 04: If there is a sufficient factual showing that security concerns or other valid, legitimate, penological reasons at that particular institution justify a complete ban, such as an exacerbating, again, a violence problem, such as the Missouri [00:30:15] Speaker 04: facility then yes but that is that not the situation we have here where the prison routinely permitted communication which is actually facilitated by other regulations that the government conveniently ignores that says that the inmates may correspond with other inmates provided that they meet criteria of approval which is no gang affiliation or participation in a racketeering [00:30:42] Speaker 04: There was no mention of these criteria during the interview process or the review of his file. [00:30:50] Speaker 04: The only reason we have from the government is subsection F that provides absolutely no affirmative language guiding officials discretion or saying what the prisons ought to do. [00:31:03] Speaker 04: In fact, it limits their discretion. [00:31:04] Speaker 04: It says what they're not allowed to do. [00:31:07] Speaker 01: So Daniels could, Daniels asked for approval. [00:31:11] Speaker 01: under one of these other criteria, including no gang affiliation, no contraband, et cetera. [00:31:16] Speaker 01: And his only response was, sorry, under 3139F, we say no. [00:31:21] Speaker 01: Is that right? [00:31:22] Speaker 01: And that's what he alleged was the problem. [00:31:23] Speaker 04: Exactly. [00:31:24] Speaker 04: And not just once. [00:31:25] Speaker 04: He was told that seven or eight times in a row. [00:31:30] Speaker 04: And you can see this outlined in the record. [00:31:40] Speaker 04: pages 10, 11, 61, 62, 69, 71, 147, 149. [00:31:44] Speaker 04: There's just plenty of instances and the only reason was subsection F. In fact, he almost begged for an internal policy, a memorandum, anything the way it was applied. [00:31:57] Speaker 04: He was previously approved. [00:31:59] Speaker 01: Your opposing counsel just argued that we should, on our own, find qualified immunity here. [00:32:06] Speaker 01: Why shouldn't we? [00:32:08] Speaker 04: So the Supreme Court and this court repeatedly emphasize that inconsistently treat a qualified immunity as an affirmative defense. [00:32:19] Speaker 04: Take, for example, Gomez v. Toledo. [00:32:22] Speaker 04: The court stated the qualified immunity is a matter of defense to be pleaded by the officials. [00:32:27] Speaker 04: And the court looks at the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances. [00:32:33] Speaker 04: Here, the factual record is so deficient and contested as to foreclose any meaningful inquiry into the circumstances surrounding the exercise of discretion. [00:32:45] Speaker 04: So it's simply premature. [00:32:48] Speaker 04: Swift v. Lewis says that once a sufficient factual record is developed, the district court should also reconsider whether defendants are immune [00:32:55] Speaker 04: from damages. [00:32:57] Speaker 04: So we do not even get there here. [00:33:00] Speaker 04: The government has not even filed an answer where it would be raised. [00:33:05] Speaker 04: And we strongly believe that Daniels would still win on the merits. [00:33:10] Speaker 04: I mean, the record shows how aware they were of this violation. [00:33:17] Speaker 04: In fact, they previously reversed [00:33:20] Speaker 04: the use of subsection F with regards to another inmate as a reason for denial. [00:33:25] Speaker 04: So they knew it was a constitutional violation that was clearly established. [00:33:30] Speaker 05: Thank you. [00:33:32] Speaker 05: Thank you, counsel, this morning for your arguments. [00:33:35] Speaker 05: They were helpful. [00:33:35] Speaker 05: And congratulations to Mr. Tinkoff and Mr. Berger for, I assume, your first Ninth Circuit arguments. [00:33:43] Speaker 05: You did a nice job for your client this morning. [00:33:46] Speaker 05: And thank you for doing that. [00:33:47] Speaker 05: So we are – this case is submitted, and we're going to take a 10-minute recess before we hear argument in United States versus Ms. [00:33:55] Speaker 05: Rahe.