[00:00:01] Speaker 01:
All right, I will call the next case.

[00:00:03] Speaker 01:
It's Jones versus Brown, number 241442.

[00:00:10] Speaker 01:
Counsel, Mr. Barrett, you may proceed.

[00:00:16] Speaker 02:
May it please the court, Your Honor, as I respectfully like to request three minutes for rebuttal.

[00:00:23] Speaker 02:
This is a textbook application of qualified immunity to prison officials.

[00:00:27] Speaker 02:
The issue here is whether there is an exception to it.

[00:00:31] Speaker 02:
Yvette Brown and Kristi Moore respectfully request reversal of the district court's order denying qualified immunity to them.

[00:00:37] Speaker 02:
I will address three reasons why this court should reverse.

[00:00:41] Speaker 02:
First, qualified immunity applies to Yvette Brown because Bernard Jones's underlying federal habeas claim was frivolous and therefore cannot support an actual injury as a matter of law.

[00:00:52] Speaker 02:
Second, qualified immunity applies to Kristi Moore because transferring Jones at the direction of her supervisor did not violate clearly established law.

[00:01:02] Speaker 02:
And the district court's determinations on Moore's knowledge of grievances are blatantly contradicted by the record.

[00:01:08] Speaker 02:
Third, this court has jurisdiction because this appeal presents abstract questions of law.

[00:01:14] Speaker 02:
Returning to my first point, the black letter law in this jurisdiction states that the plaintiff is the one who bears the burden of persuasion on qualified immunity, which is unlike most affirmative defenses.

[00:01:25] Speaker 02:
When a defendant asserts qualified immunity, the plaintiff bears a heavy two-part burden to show

[00:01:30] Speaker 02:
First, that the defendant violated their federal, constitutional, or statutory right, and second, that the right was clearly established at the time of the violation in the circumstances faced by the defendant.

[00:01:42] Speaker 02:
Yvette Brown is entitled to qualified immunity on the first prong, that Jones could not establish a constitutional violation occurred because he cannot demonstrate an actual injury to sustain his denial of access to court's claim.

[00:01:56] Speaker 02:
In his proposed petition for writ of certiorari, Jones asserted an ineffective assistance of counsel claim requesting federal habeas relief because of how his attorney handled bike mark evidence.

[00:02:07] Speaker 02:
This claim was frivolous.

[00:02:10] Speaker 02:
Importantly, Mr. Jones has declined to address the element of his trial counsel's deficient performance throughout this litigation despite multiple opportunities to do so when Brown explicitly raised the issue.

[00:02:22] Speaker 02:
Because of this, he has waived the argument.

[00:02:25] Speaker 01:
What do you mean by that element?

[00:02:29] Speaker 01:
Are we talking about the frivolousness element of access to court's claim?

[00:02:36] Speaker 02:
We're talking about the frivolousness of his ineffective assistance of counsel claim that was in his proposed petition that he claims he was denied from filing.

[00:02:46] Speaker 01:
Okay.

[00:02:47] Speaker 01:
And your argument is that they haven't addressed that?

[00:02:52] Speaker 02:
Correct, throughout this litigation below or in this appeal.

[00:03:00] Speaker 01:
Let's set that aside for the time being.

[00:03:05] Speaker 01:
I understand your argument.

[00:03:07] Speaker 01:
But in terms of determining whether there was a frivolous or non-frivolous argument,

[00:03:18] Speaker 01:
Wouldn't that require analysis of the contents of Mr. Jones's cert petition, the cert petition that didn't get filed?

[00:03:29] Speaker 02:
Correct, Your Honor, and that is in the record, as are the underlying state post-conviction proceedings and the federal habeas proceeding.

[00:03:38] Speaker 01:
I know those are too, but in terms of actually deciding whether the petition itself

[00:03:45] Speaker 01:
had a frivolous or non-frivolous argument, it's really a matter of looking at that petition, isn't it?

[00:03:51] Speaker 02:
Correct, Your Honor.

[00:03:52] Speaker 01:
All right.

[00:03:53] Speaker 01:
And that's what the Supreme Court would have done if it had been filed.

[00:03:58] Speaker 01:
I mean, that's what the Supreme Court would have looked at.

[00:04:01] Speaker 02:
Correct, Your Honor.

[00:04:01] Speaker 01:
All right.

[00:04:03] Speaker 01:
So would that be like, for example, a review of a complaint under

[00:04:11] Speaker 01:
28 USC 1915 to determine whether a complaint is frivolous?

[00:04:16] Speaker 01:
Is it akin to that kind of analysis?

[00:04:20] Speaker 02:
It is close, Your Honor.

[00:04:23] Speaker 02:
It would be a frivolousness similar to 28 USC 1915, but also in the context of a federal habeas claim, which requires heightened standards for proving a claim.

[00:04:36] Speaker 01:
I guess because of EDPA, is that what

[00:04:40] Speaker 02:
Yes, because of the Anti-terrorism and Effective Death Penalty Act of 1996.

[00:04:43] Speaker 02:
I'm sorry, Your Honor, I did not mean to interrupt you.

[00:04:49] Speaker 01:
Oh, no, no.

[00:04:50] Speaker 01:
In fact, I'm sorry.

[00:04:51] Speaker 01:
I think I interrupted you.

[00:04:54] Speaker 01:
Well, I'll throw a question in and you can go from there.

[00:04:58] Speaker 01:
The cert petition argues that the state court prevented him from presenting evidence on ineffective assistance from Dr. Dial.

[00:05:09] Speaker 01:
who was the defense's retained expert about counsel's failure to provide him with all the bite mark evidence.

[00:05:18] Speaker 01:
That may not have been a winning argument, but is it a non-frivolous argument?

[00:05:25] Speaker 02:
It is a frivolous argument, Your Honor, because there is no way for Mr. Jones to maintain that the state court's decision was so unreasonable that it lacked justification, and there was no possibility for disagreement.

[00:05:38] Speaker 02:
This is a high standard, and his argument under Broomfield that he was prevented from presenting this claim is frivolous for several reasons.

[00:05:49] Speaker 01:
First of all... Well, I didn't ask about the Broomfield.

[00:05:53] Speaker 01:
I asked just about Dr. Dial.

[00:05:55] Speaker 01:
He said, look, I didn't get a chance to bring in this expert in the post-conviction state court proceedings, and that goes to whether my counsel was deficient or not, so that's why I should

[00:06:15] Speaker 01:
The 10th Circuit should have given me a COA.

[00:06:19] Speaker 01:
Now again, I'm not saying that that's necessarily a winning argument, but why isn't it non-frivolous?

[00:06:26] Speaker 01:
What is it that makes something frivolous?

[00:06:31] Speaker 02:
It is frivolous because it really lacks an arguable basis or any merit whatsoever here.

[00:06:36] Speaker 02:
And this is in the context of his argument that he didn't get to present evidence that his conviction based off of the bite mark for his sexual assault was junk science or that he didn't get to present all of the bite mark evidence.

[00:06:55] Speaker 02:
But regarding the junk science argument,

[00:06:57] Speaker 02:
The state courts determined that he did not timely present this.

[00:07:02] Speaker 02:
So he procedurally defaulted that.

[00:07:04] Speaker 02:
And on the federal level, at the level before the Supreme Court, he actually abandoned that argument.

[00:07:12] Speaker 02:
He didn't present it when requesting a certificate.

[00:07:14] Speaker 01:
But that isn't why you wanted to call Dr. Dial.

[00:07:18] Speaker 01:
It wasn't to challenge the science itself.

[00:07:21] Speaker 01:
It was to call Dr. Dial, because Dr. Dial, we have a letter from him in the record that says, I didn't get everything that I could have used to evaluate the evidence.

[00:07:32] Speaker 01:
So it seems like the junk science is a separate argument from that.

[00:07:37] Speaker 02:
You're right, your honor.

[00:07:38] Speaker 02:
It is a second argument, but it is related.

[00:07:40] Speaker 02:
As far as his Dr. Dial claiming he didn't get all of the evidence, that relates to his counsel's ineffectiveness, alleged ineffectiveness, and he was able to present at the evidentiary hearing

[00:07:56] Speaker 02:
several pieces of evidence regarding his allegations that counsel was ineffective, including a report from another expert, Dr. Cardozo, that determined that under his evaluation, Mr. Jones would not have had the bite mark consistent with what the prosecution's expert testified.

[00:08:19] Speaker 02:
But importantly,

[00:08:21] Speaker 02:
His counsel obtained admissions on cross-examination that the bite mark may or may not have been from Jones and the Colorado Court of Appeals decision was not only consistent, but correct on clearly established Supreme Court law under Harrington versus Richter and Strickland versus Washington that

[00:08:43] Speaker 02:
Even if you take his argument that he did not present an expert on this, trial counsel's strategy was still reasonable and the court's review on federal habeas claims is doubly deferential because it must show that the Colorado Court of Appeals made an unreasonable determination on whether or not his counsel was deficient and that the Colorado Court of Appeals holding that

[00:09:13] Speaker 02:
Under the circumstances, his trial counsel's performance was not deficient, was so unreasonable that there's no possibility for fair-minded disagreement.

[00:09:22] Speaker 00:
Now, let me see if I'm following you here.

[00:09:25] Speaker 00:
Your position is Dr. Dial, Dr. Cardozo, no doctors of any kind.

[00:09:31] Speaker 00:
It doesn't matter because the Colorado courts found after a hearing that his counsel had acted effectively with effective cross-examination, obtaining admissions that this might not have been him.

[00:09:48] Speaker 00:
So therefore, because that's not an unreasonable application of federal law, he loses.

[00:09:56] Speaker 02:
Correct.

[00:09:56] Speaker 02:
And that he had no chance of success.

[00:09:58] Speaker 02:
And also his counsel sought two requests for extension of time to get more testing from Dr. Dial, which the Colorado Court of Appeals also found and was denied from doing so.

[00:10:11] Speaker 01:
So I want to circle back to one of my initial questions to you, though, because now you're arguing based on materials in the record about what happened in the Colorado courts at post-conviction hearings and at the Colorado Court of Appeals and so forth.

[00:10:29] Speaker 01:
And you have to go back and look at all that.

[00:10:31] Speaker 01:
But the cert petition that was to be filed with the Supreme Court, the Supreme Court's only going to look at that cert petition.

[00:10:41] Speaker 01:
A lot of that that you're arguing, they wouldn't have the benefit of that.

[00:10:48] Speaker 01:
So the question of whether the cert petition was frivolous is really dependent, isn't it, just on what's in the cert petition.

[00:10:57] Speaker 02:
I don't necessarily agree with that, Your Honor, because, again, the state court records and the federal habeas records are public and he's required to preserve those arguments below.

[00:11:09] Speaker 01:
Does the Supreme Court justices and their clerks go digging into records to determine whether the cert petition has any validity?

[00:11:17] Speaker 02:
I don't have any personal knowledge of that, Your Honor.

[00:11:21] Speaker 01:
That's why I asked you about the 1915, just look at the complaint.

[00:11:26] Speaker 01:
That determination is just based on looking at the face of the complaint.

[00:11:32] Speaker 01:
Is it frivolous or is it not frivolous?

[00:11:34] Speaker 01:
Why wouldn't that same analysis apply to the cert petition?

[00:11:38] Speaker 02:
And even if it does, Your Honor, it is still frivolous because, as I just mentioned, Mr. Jones cannot show that the determinations by the Colorado Court of Appeals or the underlying federal... The Colorado Court of Appeals was unreasonable, or that the tense that this court that already rejected those claims was unreasonable.

[00:12:01] Speaker 01:
This court... Let me ask you this.

[00:12:04] Speaker 01:
When the district... When the habeas district court

[00:12:08] Speaker 01:
denied the initial 2254 petition, it granted informapoparous status to Mr. Jones for his appeal to the 10th Circuit.

[00:12:20] Speaker 01:
Why wasn't that a recognition that his arguments were not frivolous?

[00:12:24] Speaker 01:
I mean, if the arguments were frivolous, you wouldn't grant IFP status.

[00:12:29] Speaker 01:
I mean, the Supreme Court itself that looked at all of this is in effect saying that this is not a frivolous

[00:12:38] Speaker 02:
argument well your honor we have to go from the district court to this to this court then to the supreme court and his argument was to the supreme court and his arguments at the supreme court were were frivolous as all as on its ineffective assistance of counsel are they any arguments to the supreme court any different than they were in the district court

[00:13:00] Speaker 02:
But in some ways, Your Honor, they were certainly much more narrow, and he had many more claims at the district court than he did that he submitted to the Supreme Court.

[00:13:11] Speaker 02:
And if Your Honor will allow me, I'd like to transition to my second point, which is about Christie Moore, because the clearly established law issue here is dispositive.

[00:13:21] Speaker 02:
There is no clearly established law in this jurisdiction that shows that her conduct

[00:13:28] Speaker 02:
engaged in retaliation when she acted at the direction of her supervisor.

[00:13:34] Speaker 02:
Again, Mr. Jones is the one who has the burden of establishing that Christie Moore violated clearly established law and the district court made some errors in its analysis.

[00:13:46] Speaker 02:
And first, it wholly failed to state the law that it found to be clearly established in the qualified immunity analysis.

[00:13:53] Speaker 02:
And none of the cases cited by the district court or by Mr. Jones in his briefing

[00:13:59] Speaker 02:
provided that a prison official who processes an inmate's transfer at the direction of their supervisor is liable for retaliation.

[00:14:07] Speaker 02:
And because of this lack of clearly established law, the district court incorrectly denied qualified immunity to Christie Moore.

[00:14:15] Speaker 00:
Well, the district court thought there were other facts relevant to that analysis other than just my supervisor told me, right?

[00:14:26] Speaker 00:
There were things about knowledge of grievances, meetings that occurred, maybe surreptitious acts that were happening behind the scenes that led to this, not just that her supervisor told her.

[00:14:45] Speaker 02:
Your Honor, with respect to Kristi Moore, there were no other surreptitious meetings.

[00:14:50] Speaker 02:
There was only one conversation between her and her supervisor, Jim Moore, who's no relation, and Jim Moore is the one who directed her to transfer Jones.

[00:15:00] Speaker 00:
And even if Kristi Moore knew about the... Is Moore the one who had the shifting explanation of why he was transferred?

[00:15:09] Speaker 00:
From the arguably shifted... I won't ask you to admit that.

[00:15:12] Speaker 00:
It's been argued that she did.

[00:15:14] Speaker 02:
Christie Moore is the case manager three who processed the, uh, Mr. Jones's transfer.

[00:15:19] Speaker 02:
And I see my time is up, but if I'm, uh, I may address your question or your honor.

[00:15:24] Speaker 02:
Christie Moore is the case manager three that transferred Mr. Jones and she, her explanation.

[00:15:30] Speaker 02:
was that her supervisor, Jim Moore, directed her to transfer Jones because he made the law librarians uncomfortable and because they wanted to find him a new a new change of scenery.

[00:15:42] Speaker 02:
And it was also revealed in discovery that Associate Warden Matt Winden is the one who directed Jim Moore to have Mr. Jones transferred.

[00:15:53] Speaker 02:
And I want to make the important point, Your Honors, that

[00:15:55] Speaker 02:
There have been some cases in this jurisdiction that make the law not clearly established here, even if Christie Moore knew about the grievances.

[00:16:04] Speaker 02:
This court stated in Trench v. Oklahoma that it has never held in the First Amendment retaliation context that true subordinate employees can be liable for retaliation.

[00:16:15] Speaker 02:
And it also stated in an unpublished opinion in 2017, Muhammad v. Hall, that this court has not yet decided whether a subordinate employee

[00:16:25] Speaker 02:
can be liable for First Amendment retaliation when taking orders from their supervisor, whether or not they knew of the alleged retaliatory motive.

[00:16:35] Speaker 02:
So, at this time, I see my time is up, Your Honor.

[00:16:39] Speaker 02:
If I may, I'd like to have a little bit of time for rebuttal, but thank you very much.

[00:16:43] Speaker 01:
Okay.

[00:16:43] Speaker 01:
Well, we'll see where we are after Ms.

[00:16:48] Speaker 01:
Anderson has presented her argument, and we'll turn it over to you, Ms.

[00:16:52] Speaker 01:
Anderson.

[00:16:54] Speaker 04:
Thank you, Your Honor.

[00:16:55] Speaker 04:
Annie Anderson on behalf of Appellee Bernard Jones, and may it please the court.

[00:17:00] Speaker 04:
Appellants seek to expand the Tenth Circuit's jurisdiction by asking for an automatic review of every denial of qualified immunity, even where, as here, the denial is based on relitigating well-supported and clearly articulated findings of fact by the district court.

[00:17:19] Speaker 04:
And all of this is to distract from the fact that what appellants are truly asking for in this case is for this court to find that a prison official can retaliate against an inmate for exercising constitutional rights and that a prison law librarian can be the gatekeeper to an inmate's constitutionally guaranteed right to access the courts.

[00:17:42] Speaker 04:
But there's no dispute that both the right to access the courts and the right to be free from retaliation

[00:17:48] Speaker 04:
are clearly established constitutional rights, and the District Court here found that there were sufficient facts on which a jury could find such violations.

[00:17:58] Speaker 04:
Now there's two issues on this appeal.

[00:18:00] Speaker 04:
The first is the 10th Circuit does not have jurisdiction to hear the appeal of either Yvette Brown,

[00:18:07] Speaker 04:
or Christie Moore on the denial of qualified immunity.

[00:18:11] Speaker 04:
The 10th Circuit has specifically requested argument on this question of jurisdiction, perhaps recognizing that although appellants attempt to frame their argument as being based on legal errors, the arguments are in fact based on trying to reweigh the well-supported factual findings of the district court.

[00:18:32] Speaker 04:
The Supreme Court held in Johnson v. Jones that questions such as this of the sufficiency of the evidence are not reviewable on appeal.

[00:18:39] Speaker 04:
And the 10th Circuit has made clear that jurisdiction is proper only where an appellant starts from the proposition of accepting the district court's fact findings as true and then alleging legal errors.

[00:18:52] Speaker 00:
What about the question?

[00:18:55] Speaker 00:
What about the district court's determination that he was seeking a basically a good faith change in the law and that it was not a frivolous claim?

[00:19:09] Speaker 00:
Is that a finding of fact or is that a legal conclusion?

[00:19:14] Speaker 04:
And so here, although appellants attempt to frame this as a legal conclusion about what frivolity is, they're not actually challenging what frivolity means.

[00:19:23] Speaker 04:
They're challenging the findings of fact of the underlying petition.

[00:19:27] Speaker 04:
And although the facts of the underlying petition are dressed up as legal issues on habeas corpus review,

[00:19:34] Speaker 04:
It's really questions of fact that are just dressed up as legal arguments.

[00:19:39] Speaker 04:
But the issue here is not the standards of habeas corpus petition.

[00:19:44] Speaker 04:
And the district court in this case cited law which held Louis V. Casey, the US Supreme Court case, and Simkins v. Bruce, and Leake v. Androski, where there's not a requirement to show likelihood of success on the merits.

[00:20:00] Speaker 04:
The question here is for Volody.

[00:20:03] Speaker 04:
And frivolity is not equivalent of success on the merits.

[00:20:07] Speaker 01:
But is frivolity a legal determination?

[00:20:11] Speaker 04:
Although frivolity is a mixed question of law and fact, I mean, frivolity does depend on findings here.

[00:20:19] Speaker 04:
And here, the district court found that there were questions of fact that led to a conclusion that this was not a frivolous petition.

[00:20:27] Speaker 04:
In fact, as to- Like what?

[00:20:30] Speaker 04:
So there were findings that Mr. Jones had the right to file a petition for writ of certiorari.

[00:20:36] Speaker 04:
That is undisputed.

[00:20:37] Speaker 04:
That's something that appellants do not dispute.

[00:20:39] Speaker 04:
That doesn't have anything to do with frivolity, though.

[00:20:43] Speaker 04:
So in Louis v. Casey, the Supreme Court did say that frivolity can be interference with the right to file a complaint.

[00:20:51] Speaker 04:
and in Simkins v. Bruce, this court held that the interference with the right to file a response to a motion for summary judgment, regardless of the merits of the motion for summary judgment response, were denials of access to courts.

[00:21:10] Speaker 01:
Council, could we just back up and talk about Mr. Jones's

[00:21:16] Speaker 01:
the claim against Ms.

[00:21:20] Speaker 01:
Brown on access to courts.

[00:21:24] Speaker 01:
And I understand your argument on interlocutory appeal, our jurisdiction is limited, but let's talk about that in the context of limited jurisdiction.

[00:21:34] Speaker 01:
So to overcome qualified immunity at summary judgment, didn't Mr. Jones have the burden to show an access to court's constitutional violation?

[00:21:45] Speaker 01:
Prong one.

[00:21:47] Speaker 04:
Yes.

[00:21:49] Speaker 01:
How did he do that?

[00:21:51] Speaker 04:
Mr. Jones did this by setting forth clearly established law that shows what the standard is.

[00:22:00] Speaker 01:
Well, no, no, I'm not talking about clearly established law.

[00:22:03] Speaker 01:
I'm just saying how did he show?

[00:22:05] Speaker 01:
Well, let's put it this way.

[00:22:06] Speaker 01:
How did he show that his cert petition presented a non-frivolous argument?

[00:22:11] Speaker 04:
And so I think that there are various facts that go into this question.

[00:22:15] Speaker 04:
And some of them are what I started started to list the fact that he had a right to file the petition on May 16th, 2019, that the petition was all but finished except for needing to add page numbers and be printed.

[00:22:29] Speaker 01:
I asked you about the contents of the cert petition, not whether he had a right to file it or whether he prepared it or any of those things.

[00:22:37] Speaker 01:
Just the question of whether the cert petition itself presented a non frivolous argument now did it or didn't it and did you show that in district court?

[00:22:49] Speaker 04:
Yes, your honor and I appreciate the question and I understand that there are some differences in the fact question.

[00:22:54] Speaker 04:
Also the arguable legal merits.

[00:22:55] Speaker 01:
Let's just go to the question.

[00:22:57] Speaker 01:
Go ahead and respond to the question.

[00:22:59] Speaker 04:
And in the district court, Mr. Jones did make an argument that there was arguable legal merit on the basis of the Broomfield argument.

[00:23:08] Speaker 04:
We also did make the argument that the petition itself was non-frivolous as a general matter.

[00:23:15] Speaker 01:
Ultimately, also as the court... Well, okay, that isn't going to work unless you say why.

[00:23:21] Speaker 01:
You can't say it's non-frivolous as a general matter.

[00:23:25] Speaker 01:
What was the non-frivolous argument?

[00:23:28] Speaker 01:
Now, you mentioned Brumfield.

[00:23:30] Speaker 01:
Let me ask you this.

[00:23:31] Speaker 01:
Did Mr. Jones in District Cork on qualified immunity point to anything in the cert petition that had to do with Dr. Dial?

[00:23:45] Speaker 01:
Because counsel, quite frankly, Dr. Dial's mentioned multiple times in that cert petition, over 20 times.

[00:23:55] Speaker 01:
And he's not mentioned once in your brief.

[00:23:57] Speaker 01:
And he wasn't mentioned in district court.

[00:24:00] Speaker 01:
And so my question is, if that's your argument, why didn't you make it?

[00:24:06] Speaker 03:
And Your Honor, you are correct that we did not make an argument as to Dr. Dial.

[00:24:11] Speaker 03:
Well, what is the Brumfield argument then?

[00:24:15] Speaker 01:
I mean, the Brumfield argument is that he didn't get to present evidence in the post-conviction hearing.

[00:24:21] Speaker 01:
What evidence didn't he get to present?

[00:24:24] Speaker 03:
And it was, it is the evidence of Dr dial.

[00:24:27] Speaker 03:
Yeah, but you don't know.

[00:24:27] Speaker 01:
You never, you never argued that to the district court.

[00:24:31] Speaker 01:
But the record or in your appellate brief.

[00:24:35] Speaker 01:
And I know you're the appellee, but, but, but, but why didn't you fail to make your, your, the burden.

[00:24:42] Speaker 01:
Unqualified immunity in district court.

[00:24:45] Speaker 04:
And your honor, I think not to bypass the question, but I do think that there is something to be said about under the law, what is required for frivolity is not to get into every single argument that could have been made that the Supreme Court.

[00:24:58] Speaker 01:
I'm just asking you to identify one argument that was made because don't we have, I mean, there are two elements to this claim.

[00:25:08] Speaker 01:
One was whether he was interfered with.

[00:25:10] Speaker 01:
And the district court determined that there was a question of fact there.

[00:25:13] Speaker 01:
So you don't have to, that's not contested at this point, but what is contested is whether there was injury and whether there was injury depends on whether the claim was frivolous.

[00:25:26] Speaker 01:
And that's where we are.

[00:25:28] Speaker 01:
Was the cert petition, how did you show that the cert petition was not frivolous?

[00:25:34] Speaker 04:
And respectfully, your honor, I understand that the court believes that what is required for a showing of frivolity is the actual merits of the underlying petition.

[00:25:44] Speaker 04:
But part of how we show that it was not frivolous was by showing that he had the right to file a petition and that what was prevented was his counsel counsel, the Supreme Court in Louis V Casey said.

[00:25:57] Speaker 01:
that an access to court claim requires that a non-frivolous claim had been frustrated or was being impeded.

[00:26:06] Speaker 01:
It needs to be a non-frivolous claim that was impeded.

[00:26:10] Speaker 01:
And you're arguing that, well, if he was impeded, it doesn't matter whether the claim was frivolous or not.

[00:26:16] Speaker 01:
How do you square that with the Supreme Court case?

[00:26:19] Speaker 04:
And I think that the Supreme Court case addresses this when it does leave open the door.

[00:26:24] Speaker 04:
It didn't address it directly in Louis v. Casey, but it did say interference with the right to file a complaint can be

[00:26:31] Speaker 04:
a non frivolous actual inj Bruce.

[00:26:36] Speaker 04:
This court did not plaintiff show what argu made in response to a mo because the fact of the i right is an actual injur other cases where we need of the merits of the underl of the fact that there is non frivolous.

[00:27:00] Speaker 01:
So let's ju

[00:27:01] Speaker 01:
I take it your position is that once the library was closed on the filing deadline, that's it.

[00:27:10] Speaker 01:
There was an access to courts violation.

[00:27:13] Speaker 04:
I think it was when the library was closed and when, as Mr. Jones testified, he tried to access the law library via a phone call and was not given any alternative access, even though there are options available under the prison's own regulations.

[00:27:30] Speaker 01:
And somehow that shows that his claim was non-frivolous.

[00:27:36] Speaker 04:
I think that there is case law to support that.

[00:27:38] Speaker 04:
Nonetheless, to go back, we did make the argument that Broomfield v. Kane opens the door for the Supreme Court to allow additional fact-finding.

[00:27:47] Speaker 04:
And while I do recognize that we did not cite to Dr. Dial specifically, that is implicit in the argument.

[00:27:53] Speaker 04:
And appellants made various arguments about the petition.

[00:27:57] Speaker 01:
It seems like Mr. Jones made the argument in a much more

[00:28:02] Speaker 01:
robust way than you did in the district court here.

[00:28:08] Speaker 04:
And I will concede that he may have made a more robust finding, but that's because it was a petition for writ of certiorari on a habeas corpus petition.

[00:28:18] Speaker 01:
Well, now you've got a 1983 civil rights claim where you're making the same argument.

[00:28:26] Speaker 04:
Well, it is somewhat the same argument, but it is also a slightly different argument because the standards for frivolity are not the same as the standards for success on a habeas corpus petition.

[00:28:39] Speaker 00:
What do you think about this?

[00:28:41] Speaker 00:
Sometimes when we're looking at a COA, or actually when we're looking at a COA, we decide whether an issue is debatable among jurists of reason.

[00:28:54] Speaker 00:
If a court decides that an issue is not debatable, is that basically the same as finding there's no non-frivolous issue?

[00:29:08] Speaker 04:
I think that that is right, Your Honor.

[00:29:13] Speaker 04:
that debatable and non frivolous are really ultimately the same thing.

[00:29:20] Speaker 04:
Like if there's actually been some arguable legal mayor, if it's arguable, if it's debatable, it cannot be frivolous.

[00:29:27] Speaker 04:
And the district court here did make a clear finding that this was at least debatable legally.

[00:29:33] Speaker 01:
And that was in response to- Well, but council, Mr. Barrett points out that there were a number of different claims.

[00:29:41] Speaker 01:
in the district court.

[00:29:42] Speaker 01:
And is it really all that clear whether the granting of IFP status was based on this access to courts claim or one of the other claims?

[00:29:53] Speaker 01:
We don't know that, do we?

[00:29:55] Speaker 04:
Well, I mean, the underlying courts didn't hold it was frivolous on any arguments.

[00:30:00] Speaker 04:
I mean, it granted in form of hoppress.

[00:30:02] Speaker 04:
Yes, we don't know exactly what that is.

[00:30:03] Speaker 04:
But again, those are questions of fact that appellants argued to the district court.

[00:30:09] Speaker 04:
that the district court found were not dispositive on the issue of frivolity.

[00:30:19] Speaker 04:
Now, Your Honor, I would like to turn to jurisdiction as to Christie Moore.

[00:30:26] Speaker 04:
And if you have more questions on Yvette Brown, I'm happy to answer them.

[00:30:30] Speaker 04:
But otherwise, I'd like to turn to the retaliation claim.

[00:30:33] Speaker 04:
Christy Moore was the Colorado Department of Corrections internal classification committee chairwoman who was responsible for transferring inmates from Fremont Correctional Facility where Mr. Jones was housed.

[00:30:47] Speaker 04:
Mr. Jones set forth facts that Ms.

[00:30:50] Speaker 04:
Moore participated in Mr. Jones's transfer, that she drafted the transfer paperwork, that she wrote on the transfer paperwork,

[00:30:59] Speaker 04:
that Mr. Jones needed a change of scenery because he was harassing the law librarians, and that she actually initiated the transfer.

[00:31:08] Speaker 04:
Appellants claim that there is an issue of the district court not identifying the clearly established constitutional right that was violated, but the district court here did cite numerous cases which have held that

[00:31:25] Speaker 04:
The First Amendment prohibits retaliation for exercising constitutional rights.

[00:31:30] Speaker 04:
And appellants claim that there's case law on which there's a question of whether a subordinate truly participated when they're following orders.

[00:31:41] Speaker 04:
That's a question of fact that the district court rejected.

[00:31:45] Speaker 04:
It found that there were disputed facts as to Christine Moore's knowledge and specifically on the issue of Mr. Jones's grievances.

[00:31:57] Speaker 04:
Now, Your Honours, I see my time is up.

[00:31:58] Speaker 04:
I would just like to ask for an opportunity to sum up, unless there are any... Why don't you go ahead and sum up?

[00:32:07] Speaker 01:
And we gave Mr. Barrett a little extra time, too.

[00:32:11] Speaker 01:
So let's go ahead and sum up.

[00:32:14] Speaker 04:
Now, Mr. Jones deserves his day in court, and that's because the district court concluded that a jury should be the one to decide.

[00:32:21] Speaker 04:
if Mr. Jones was retaliated against, and if Mr. Jones was denied access to the courts.

[00:32:28] Speaker 04:
Appellants want a law librarian to be the one to decide who deserves access to courts, but such an argument should not stand, and Mr. Jones deserves a stay in court.

[00:32:40] Speaker 04:
Thus, we request the Tenth Circuit uphold the District Court's denial of qualified immunity as to both Yvette Brown and Kristi Moore, and allow the case to proceed to trial.

[00:32:52] Speaker 04:
Thank you.

[00:32:53] Speaker 01:
Thank you, counsel.

[00:32:54] Speaker 01:
I think we pretty much given it both sides equal time on this.

[00:33:00] Speaker 01:
So I think we're going to bring this to closure.

[00:33:02] Speaker 01:
Appreciate both of your arguments this morning.

[00:33:06] Speaker 01:
The case will be submitted and counsel are excused.

[00:33:08] Speaker 01:
Thank you.

[00:33:09] Speaker 01:
Thank you, your honor.