[00:00:01] Speaker 01:
May it please the court.

[00:00:03] Speaker 01:
My name is Daniel Booken.

[00:00:05] Speaker 01:
I represent the plaintiff appellant, Kevin Rhodes, seated with me at council table are Molly Edgar and Michelle Abundance.

[00:00:15] Speaker 01:
I'd like to reserve five minutes for rebuttal.

[00:00:19] Speaker 01:
Rhodes appeals to summary judgment orders dismissing 1983 claims alleging that David Ford retaliated against him for filing

[00:00:30] Speaker 01:
a grievance at Pelican Bay State Prison.

[00:00:34] Speaker 01:
Rhodes' first claim regards a January 16, 2020 incident where Ford filed a false rules violation report, an RVR, in retaliation for a grievance that Rhodes had filed regarding the law library that Ford supervised

[00:01:01] Speaker 01:
First, the district court's order should be reversed because there's a genuine dispute as to whether Ford had retaliatory intent when he filed the RVR against Rhodes.

[00:01:15] Speaker 01:
Ford testified twice at his deposition that he was told that Rhodes had filed a grievance against him, a fact that the district court did not even mention in its decision.

[00:01:31] Speaker 01:
As set forth in our brief, there's substantial evidence that Ford was told this shortly before the library incident.

[00:01:42] Speaker 01:
When Rhodes entered the library on January 16th, Ford was angry with him.

[00:01:52] Speaker 01:
Ford refused to give Rhodes a signed receipt

[00:01:57] Speaker 01:
for Rhodes form 22 request for information, which is undisputed that Rhodes was entitled to.

[00:02:07] Speaker 01:
When Rhodes protested, as he had a right to do, Ford filed an RVR against him.

[00:02:17] Speaker 01:
That's more than enough evidence to create a genuine dispute as to whether Ford had retaliatory intent

[00:02:27] Speaker 01:
when he filed the RVR.

[00:02:30] Speaker 01:
Second, the district court erred as a matter of law when it granted summary judgment on the ground that Ford could not have had retaliatory intent because he did not know that Rhodes' grievance was filed against him personally.

[00:02:53] Speaker 01:
That's wrong as a matter of law.

[00:02:56] Speaker 01:
Section 1983 has no requirement that a defendant know that a grievance was filed against him personally to unconstitutionally retaliate against the prisoner.

[00:03:10] Speaker 00:
He needs to know that there was a grievance.

[00:03:12] Speaker 00:
That's correct.

[00:03:13] Speaker 00:
He has reasonable suspicion of grievance, but it does not necessarily have to be against him personally.

[00:03:18] Speaker 00:
That's the point.

[00:03:18] Speaker 01:
Not at all.

[00:03:20] Speaker 01:
Both this court and other courts have

[00:03:25] Speaker 01:
reversed summary judgment decisions on retaliatory retaliation claims when the grievances at issue were not against the defendant at all.

[00:03:42] Speaker 01:
It's unconstitutional to retaliate against a prisoner for filing a grievance, period.

[00:03:53] Speaker 01:
The district court's decision was wrong both on the facts and on the law.

[00:03:59] Speaker 01:
I'd like to move on to Rhodes' second claim regarding the January 28th attack against him, which I might add is further evidence of Ford's retaliatory intent with respect to the January 16th incident.

[00:04:17] Speaker 01:
Rhodes raised the January 28th attack

[00:04:21] Speaker 01:
in his grievance 20-187.

[00:04:23] Speaker 01:
The district court ruled that Rhodes had not exhausted his administrative remedies because he failed to follow prison procedures.

[00:04:36] Speaker 01:
But Rhodes did exhaust his administrative remedies because the third level appeals board at the prison denied the January 28th attack on the merits.

[00:04:53] Speaker 01:
In Rays v. Smith, this court held that a prisoner has exhausted his administrative remedies if the appeals board denies the grievance on the merits, even if the prisoner failed to follow prison procedures.

[00:05:12] Speaker 01:
In Rhodes' original grievance, he described the issue

[00:05:17] Speaker 01:
as, quote, a civil conspiracy by Ford and other staff to retaliate against appellant for the submission of the 602 appeal.

[00:05:30] Speaker 01:
In Reyes, this court held that a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.

[00:05:48] Speaker 01:
The issue that the third level appeals board decided was, quote, appellant alleges staff conspired to retaliate against him for filing an appeal against library technical assistant D. Ford.

[00:06:08] Speaker 01:
That clearly encompasses Rhodes' description of the January 28th attack

[00:06:16] Speaker 01:
in his CDCR 602 appeal form, which the appeal board explicitly stated that it considered.

[00:06:29] Speaker 01:
Rhodes stated in that form that Ford conspired with other staff members to incite prisoners to attack him.

[00:06:41] Speaker 01:
If the appeals board intended to limit its decision

[00:06:46] Speaker 01:
to the January 16th incident.

[00:06:49] Speaker 01:
It would have done so, but it didn't.

[00:06:53] Speaker 01:
It denied the January 28th grievance on the merits, and Rhodes administrative remedies were exhausted.

[00:07:04] Speaker 00:
So the argument here is, although he might not have raised it in his initial complaint by the time we get to the third level, it has been raised and it's been responded to.

[00:07:15] Speaker 01:
That's correct.

[00:07:16] Speaker 00:
Because in that last decision, after a thorough review of all documents and evidence, that includes then his documents in front of the, at the third level.

[00:07:26] Speaker 01:
Yes, the appeals board explicitly stated that it reviewed and considered thoroughly at 602.

[00:07:37] Speaker 01:
If the court has no further questions, I'd like to reserve the rest of my time for rebuttal.

[00:07:42] Speaker 02:
Thank you, counsel.

[00:08:07] Speaker 03:
Good morning, Your Honours, and may it please the court.

[00:08:09] Speaker 03:
I'm Deputy Attorney General Chase Goldstein for defendant appellee David Ford.

[00:08:15] Speaker 03:
The court below dismissed Cabin Rose's two separate retaliation claims in two separate summary judgment orders.

[00:08:23] Speaker 03:
The first retaliation claim involves a January 16, 2020 rules violation report

[00:08:31] Speaker 03:
that was dismissed because Rhodes could not show that Ford issued it with an intent to retaliate.

[00:08:39] Speaker 03:
The second claim, the second retaliation claim involved an attack against Cabin Rhodes.

[00:08:44] Speaker 00:
Now go back to that first one.

[00:08:46] Speaker 00:
As I understand the district court, the district court said there's no showing that Ford even knew about it and therefore it could not have been retaliation.

[00:08:54] Speaker 03:
The district court said that there was no showing that Ford knew that it was against him personally, which the grievance was not.

[00:09:03] Speaker 03:
It was about general law library policies.

[00:09:06] Speaker 00:
But I think you would probably agree as a matter of law, it doesn't require that it be against him personally.

[00:09:13] Speaker 00:
What's the evidence that he knew about the grievance?

[00:09:16] Speaker 03:
The there's evidence that he knew about the grievance on December 26th when cabin roads provided David Ford a written request for assistance with gathering documents so he could prosecute the grievance.

[00:09:31] Speaker 03:
And that written request explained to David Ford exactly what the grievance was about about law library policies.

[00:09:37] Speaker 03:
And instead of stonewalling Kavan Rhodes, Rhodes complied with the request and provided Rhodes the documents he needed to prosecute his grievance.

[00:09:48] Speaker 03:
And then after that date, but before the alleged retaliation occurred, Rhodes visited the law library six more times without any incident, which begs the question, what happened on the seventh visit?

[00:10:04] Speaker 03:
And as Rhodes has already answered for us,

[00:10:08] Speaker 03:
He got into a dispute with David Ford on January 16th about additional documentation.

[00:10:15] Speaker 03:
And that's what caused the rules violation report on January 16th, not a grievance that Rhodes filed over a month prior.

[00:10:26] Speaker 03:
So there are all these intervening steps between David Ford learning about

[00:10:34] Speaker 03:
a grievance that didn't involve him, for which he faced no personal liability or potential adverse consequences.

[00:10:43] Speaker 03:
There are all these other intervening steps that discredit any notion, that show that David Ford was not acting to retaliate.

[00:10:52] Speaker 03:
And then, as Rhodes admits, he got into a disagreement with David Ford on January 16th.

[00:10:59] Speaker 03:
And again, that's what caused the rules violation report.

[00:11:14] Speaker 03:
if I may then I'll turn to the to the second issue regarding the The January 28th attack that that Rhodes alleges Ford organized against him Rhodes submitted grievance 187 on January 22nd 2020 this grievance did not reference because it could not reference the alleged attack six days later and

[00:11:41] Speaker 03:
Rhodes raised the issue of the attack for the first time when he appealed this grievance to the third level in March of 2020.

[00:11:50] Speaker 03:
In these circumstances, the prison's procedural requirements are clear, binding, and unconditional.

[00:11:59] Speaker 03:
Title 15, Section 3084.1B of the California Code of Regulations

[00:12:06] Speaker 03:
expressly deems as unexhausted new issues that the prisoner raises for the first time on appeal, which is what Rhodes did here.

[00:12:17] Speaker 00:
What do you do with the fact that he appears to have raised it at the third level and it appears to have been responded to at the third level without saying, hey, you can't do it this way?

[00:12:27] Speaker 03:
So there's no affirmative

[00:12:31] Speaker 03:
obligation in the procedural requirements for the prison to reject the grievance.

[00:12:38] Speaker 03:
Other code sections say that they may reject the grievance, but they can also consider the broader grievance rendering a judgment on the properly raised issues while leaving the improperly raised issues unexhausted.

[00:12:55] Speaker 00:
Right, but I'm looking at this statement.

[00:12:58] Speaker 00:
I'm on ER 541, conclusion and order

[00:13:01] Speaker 00:
was denied after a thorough review of all documents and evidence and in fact by this time we've got the complaint as to what happened.

[00:13:10] Speaker 00:
So why is that not exhaustion?

[00:13:12] Speaker 00:
Not that they had to consider it, but they appeared to have done so.

[00:13:16] Speaker 03:
So the Wilson versus Zubiate case cited in our brief states that to render a judgment on the merits, the grievance office must actually affirmatively and substantively discuss the new issue, which they don't do here.

[00:13:36] Speaker 03:
Rhodes referred to a conspiracy against him at the second level.

[00:13:43] Speaker 03:
All the third level is doing is saying, we reviewed the documents regarding this conspiracy.

[00:13:48] Speaker 03:
So there's no affirmative statement.

[00:13:50] Speaker 00:
You added the word with respect to this conspiracy.

[00:13:53] Speaker 00:
The words are, after a thorough review of all documents and evidence, without a qualifier.

[00:14:01] Speaker 03:
Yeah.

[00:14:02] Speaker 03:
I mean, it's just a generic.

[00:14:06] Speaker 03:
I mean, when they define the issue at the third level, it's a very generic statement saying, we have reviewed

[00:14:12] Speaker 03:
You know, we're reviewing your claims regarding a conspiracy.

[00:14:18] Speaker 03:
And they're just reviewing the same issues that he has raised at the second level.

[00:14:22] Speaker 03:
Again, there is no affirmative statement that we are addressing this new issue of an alleged attack.

[00:14:29] Speaker 00:
But the question, the attack, according to him, is that that's part of the conspiracy.

[00:14:38] Speaker 03:
Yes.

[00:14:41] Speaker 03:
The attack is part of the conspiracy, but the third level review board is only reviewing the issues raised at the second level.

[00:14:48] Speaker 03:
There's no reference to an attack in the third level.

[00:14:52] Speaker 03:
There's just this generic statement, we have reviewed the documents that you have submitted.

[00:14:59] Speaker 03:
So that's not substantive.

[00:15:03] Speaker 00:
But the word is all in there.

[00:15:04] Speaker 00:
We reviewed all of the documents.

[00:15:08] Speaker 00:
And this document is in front of them, right?

[00:15:11] Speaker 00:
Right.

[00:15:11] Speaker 00:
Yeah.

[00:15:14] Speaker 03:
Okay.

[00:15:20] Speaker 03:
I mean, I disagree that that is an instance of them substantively and affirmatively addressing

[00:15:33] Speaker 03:
the issue of the attack like they did, like what the Wilson v. Zubiate case requires.

[00:15:42] Speaker 03:
Saying that we've reviewed the documents in front of us doesn't say we have considered this attack, this alleged attack.

[00:15:48] Speaker 03:
Again, to me, that is a generic statement that they include

[00:15:56] Speaker 03:
in every grievance, that this is kind of standard template language.

[00:16:00] Speaker 03:
This is not affirmative representation that they have substantively dealt with the issue of the alleged attack.

[00:16:11] Speaker 02:
So you're saying the standard language doesn't mean anything?

[00:16:18] Speaker 03:
In this case, I am saying

[00:16:21] Speaker 03:
I don't think we should find additional meaning in, we shouldn't read additional meaning into the standard language that they have substantively considered the alleged attack.

[00:16:36] Speaker 00:
I have to say in some respects I'm sympathetic to the prison officials here and with the district judge because

[00:16:44] Speaker 00:
The appellant here files lots and lots and lots of these things.

[00:16:49] Speaker 00:
Correct.

[00:16:49] Speaker 00:
And some of them there's nothing to them or they're not exhausted and so on.

[00:16:55] Speaker 00:
And it's a little hard to separate out the wheat from the chaff when there's a lot of chaff.

[00:16:59] Speaker 00:
Correct.

[00:16:59] Speaker 00:
There may be a little wheat here, however.

[00:17:02] Speaker 03:
Correct.

[00:17:02] Speaker 03:
I mean, this grievance in particular is a good example of that.

[00:17:06] Speaker 03:
He alleges a long and complex series of events starting in December

[00:17:12] Speaker 03:
mostly relating to law library access issues, that he was denied access to the law library, that they confiscated his legal documents improperly, that they only allowed him to bring six pieces of paper to the law library, and he couches all of them into this alleged conspiracy, or that they're all the product of this alleged conspiracy.

[00:17:37] Speaker 03:
And then, when he appeals it to the final level, he says there was also,

[00:17:42] Speaker 03:
Another product of this conspiracy was to attack me.

[00:17:47] Speaker 03:
And I submit that that standard template language that is in grievances, that we have reviewed everything that you have provided us, forgive me for paraphrasing,

[00:18:05] Speaker 02:
is unhelpful, but again, I... Here's the problem, is that we get these cases where the prisoner says, you didn't consider my evidence.

[00:18:16] Speaker 02:
And then we take at face value that standard language and in fact they did.

[00:18:20] Speaker 02:
And now you're basically the shoes on the other foot and you're saying, well they didn't really.

[00:18:26] Speaker 02:
That's the difficulty I have.

[00:18:30] Speaker 02:
And you may be right.

[00:18:32] Speaker 02:
And of course, there's no question there are a lot of these grievances he filed.

[00:18:36] Speaker 02:
So I get it.

[00:18:37] Speaker 02:
But that's the conundrum when you say, really, it didn't mean that.

[00:18:44] Speaker 02:
We'd like to say in other cases, yeah, they looked at everything.

[00:18:47] Speaker 03:
They said they did.

[00:19:03] Speaker 03:
With that, unless there are any further questions.

[00:19:07] Speaker 02:
None from my colleagues, so thank you for your argument.

[00:19:10] Speaker 03:
Thank you.

[00:19:11] Speaker 02:
I hear a rebuttal.

[00:19:39] Speaker 01:
As to Mr. Goldstein's point about what could have changed between the time that Ford first saw the grievance in December and when he issued the RVR on January 16th, I have an answer.

[00:20:03] Speaker 01:
He was told that the grievance was against him personally.

[00:20:08] Speaker 01:
shortly before January 16th.

[00:20:11] Speaker 01:
That's what changed.

[00:20:14] Speaker 01:
That's what created his retaliatory intent.

[00:20:21] Speaker 02:
So I know this isn't part of the appeal, but just so I have a flavor for what damages are you seeking?

[00:20:29] Speaker 01:
What erodes damages?

[00:20:31] Speaker 01:
This court has held that violation of a

[00:20:36] Speaker 01:
prisoners first amendment rights.

[00:20:38] Speaker 02:
I understand.

[00:20:41] Speaker 02:
Do you have a number you're seeking in this case?

[00:20:45] Speaker 02:
If you get down to trial, what number do you ask the judge or the jury?

[00:20:50] Speaker 01:
In the complaint, I believe we asked for $250,000.

[00:20:53] Speaker 01:
That's subject to negotiation.

[00:21:00] Speaker 00:
That's a will-see number.

[00:21:03] Speaker 01:
Thanks.

[00:21:06] Speaker 01:
Mr. Goldstein cited Wilson the Zubiate saying that the appeals board must discuss the facts in order to decide an issue.

[00:21:30] Speaker 01:
First of all, that was pure dictum.

[00:21:32] Speaker 01:
in Zubiate because the board in that case did not render any decision on the merits.

[00:21:39] Speaker 01:
It canceled the grievance and sent the grievance to the Veterans Administration.

[00:21:48] Speaker 01:
Moreover, in this case, the appeals board did not discuss any facts in its decision.

[00:21:57] Speaker 01:
Yet, Ford concedes that there was a decision on the merits

[00:22:03] Speaker 01:
with respect to the January 16th incident.

[00:22:08] Speaker 01:
So obviously the appeals board didn't need to discuss merits.

[00:22:17] Speaker 01:
What the appeals board said was it decided the issue of whether Ford conspired to retaliate against Rhodes for filing a grievance.

[00:22:32] Speaker 01:
and that clearly covers the January 28th attack.

[00:22:39] Speaker 01:
In conclusion, the District Court's order regarding the January 16th RVR was wrong on the facts and on the law.

[00:22:53] Speaker 01:
The January 28th attack on roads was egregious.

[00:22:59] Speaker 01:
On January 16th,

[00:23:01] Speaker 01:
Ford banned Rhodes from the law library.

[00:23:09] Speaker 01:
Documentary evidence shows that less than two weeks later, Ford arranged for Rhodes to come back to the library.

[00:23:20] Speaker 01:
As Rhodes waited at the library gates, he was brutally attacked by four inmates.

[00:23:31] Speaker 01:
as Ford watched, and Rhodes ended up in the prison hospital.

[00:23:40] Speaker 01:
When Ford was asked about the attack, at his deposition, he repeatedly committed perjury.

[00:23:51] Speaker 01:
He said that he did not arrange for Rhodes to come to the library, even though computer records show that he did.

[00:24:01] Speaker 01:
He said he didn't see the document that brought Rhodes to the library, even though his initials were on it.

[00:24:10] Speaker 01:
He said he didn't alter the document and it was altered, even though it was in his sole possession.

[00:24:20] Speaker 01:
Ford's conduct was outrageous and he should be held accountable for it.

[00:24:30] Speaker 01:
Ford's conduct, if I misspoke, was outrageous and he should be held accountable for it.

[00:24:38] Speaker 01:
Kevin Rhodes should have his day in court.

[00:24:42] Speaker 02:
Thank you.

[00:24:43] Speaker 02:
Thank you, counsel.

[00:24:44] Speaker 02:
Thank you both for your argument today.

[00:24:45] Speaker 02:
The case is just going to be submitted for decision and we'll be in recess for the morning.

[00:24:50] Speaker 02:
Thank you.