seattle university's school of universal thank you very much for the opportunity i plan to devote my time today on the court access claim unless the court has any questions on the relief a claim your honor if you have a question could have talked to his clergy person you've ever by mail or otherwise without being monitored and i'm wondering what the record shows about clergy visit him at the prison in person in holby hobbs the supreme court held that the valid will be some ways of practicing a religion does not excuse the imposition of substantial burdens on other ways so even if you could practice the religion through mail or in person that doesn't negate a potential substantial burden here by being on unable to have on monitor well i'm trying to understand whether whether your position is  theoretical one you can make changes unreviewed may all but that's still a substantial burden because i can't have reviewed phone calls or whether you're saying he had no unmonitored opportunities at all mr merrick stated that private confessional calls were a requirement of his religious practice and so that's still doesn't answer my question you have ma a motion for reconsideration in his criminal appeal but was unable to file that motion with the court because defendant leading the supervisor in charge of providing assistance to inmates legal assistance to inmates at the prison took it upon herself to inappropriately assume position at the prison her job is to assist inmates with filing eyeless was created in order in response to bound to be smith to assist in me her job is not to screen orders for the court but it's for the court determined she should filed the motion and if the court determines that mr merrick inappropriately filed it and they could have refused it but this was not something mr mark sir i'm sorry this is not something that defendant lowey should have done my other major question about this claim is w nominal damages curious what facts here for you support more than negligence it appears to me that lilly thought that the petition for review in motion for reconsideration with a single document and was negligent in not really understanding that it was two separate documents where they are something more of a mere negligence yes your honor this court as well as the first six seven tenth and eleventh circuit have all found actionable conduct when present prison officials engage in a deliberate course of conduct that has an immediate and obvious effect on an inmate's right of court access all right i'm asking you exactly about lily it was an unreasonable mistake given her position as supervisor of inmate legal services she'd worked there for twelve and a half years she was in charge of training legal assistance to assist inmates at the prison given that it's unreasonable for her to mistake a motion for reconsideration from a petition for review additionally her actions before that mistake indicate a level of intentionality she refused to file his initial request even though mr merric k indicated no less than eight times that he was filing pro se she refused interest in response to his filing of us first grievance on a member fourteenth and again in response to the escalation of that grievance on december si all of this is intentional conduct for example the tenth circuit and simpkins held at a prison official acts intentionally after she withheld an inmate smell when he was transferred to another facility and that was despite the fact that the prison official mistakenly thought that she was following prison rules and so that was also but i think this is what the question at the outset it seems to me that if your position is that she was impeding access by not simply not sending it on the first time then the fact that she made a mistake later is really pertinent the point is that she if she didn't have any role or a proper role in determining whether he was pro se or not then violated when the we initially refused to file the motion everything else is just exacerbated the situation and not just because you now want to just crush us mistaken even understandably mistaken about whether he was pro se correct your honor even if even if she was district court erred by concluding that louise conduct did not prevent mr mark from filing his motion and in reaching this conclusion the court held this to merit to an overly demanding standard that is contrary to existing law in louis c k c the supreme court held that a constitutional violation occurs when prison officials hinder an inmate's ability to access the courts night of the supreme court or the courts of appeal require plaintiffs to show that the relevant official acts interfering with their court access or acted in an insurmountable barrier submitted the motion well before the filing deadline and indicated multiple times that he was pro se upon the initial rejection he immediately filed a grievance and he escalated that grievance after he was refused and their grievances ended and he indicated that believed that it took at least a week to resolve grievances and that's why you stated what you stated and indeed this took over a month to resolve in addition mr maher did say in his grievance when when the motion was due so anyone seeing the grievance know with the request or with the grave and the actual opinion by the court that said that he could file a pro se motion to reconsider he says he he gave it to lily i think on on the tenth yes he stated that he showed it to a grievance officer on november eighth and november twentieth but even if he had submitted even if lily did not see the grievance it is in the record that she did see the grievance on november third i mean i have nothing against i'm sorry the court of appeals order on nov thirteenth which was still a day before the filing deadline and at that point she still refused to file so having a copy of the court of appeal's order did not change anything additionally there's no requirement that mr merrick show i l f a copy of the court of appeals order and mr merrick was not instructed to do so by lowly finally honors the district court in granting summary judgment to the defendants because mr merrick presented evidence demonstrating that his motion for reconsideration contains non frivolous claims the district court erred in concluding that mr american not shown that his motion for reconsideration was non frivolous because in making that determination the court failed to substantively consider mr america actual arguments instead the district court improperly focused on whether mr marks arguments were repetitive but whether an argument is repetitive is not the correct analysis for determining whether that argument is frivolous moreover arizona courts generally do not even consider arguments raised for the first time in a motion for reconsideration well they said they were not they were to rest the focus on what t what the court had determined so and that some say were in for a predicate because the court had determined anything before that's correct your honor but the day but but but they so they were positive only in the sense that they were the same general issue is correct your honor but but that that defense was only available to government employees and mr merrick correctly pointed out in his motion for reconsideration that farrah was available to all arizona citizens as a defense to criminal conduct and indeed that was ruled on by a in a controlling opinion  good afternoon my name is joseph the hill i'm with the maricopa county attorney's office and we represent obviously care a living and the sheriff's office in relation to the claims and this l central access to the court's claim in the district court determined that karalee as the court as the judge said acted at most it was a mistake and that she urged in not filing the motion for  reconsideration initially the court the district court did not determine whether or not her mistake or negligence was enough to constitute a constitutional violation the just record to further that ruling and instead focused on whether or not there was an actual injury that was shown by mr merrick but the state notion of again from the proposition that she had some role and in some appropriate role in screening this male to see whether or not it was properly pro se right your honor i just i would agree that carolyn lee's actions when she initially received the motion based upon as she indicated rulings of the prior court that indicated he was represented by counsel that he was giving one specific time to file a supplemental  brief that was filed just making a legal ruling about whether you listen tile just file this paper said a rule role as opposed to saying that he has access to the court no your honor but i don't i disagree with the assessment that she's making a legal ruling in that she's following prior court orders that appointed him counsel and if the court feels that was a negligent act then the next step that we need to take is determine in which the court the district court in determining whether or not anything he did file a grievance but in that grievance as judge curial indicated he simply filed a grievance and indicated that there was nothing else that could be done and as a matter of fact he did don't see anything in the record that in case he submitted a nov tenth unless that was the date he submitted his petition for review and in looking at the record the petition file the petition review attached to that copy with the petition for review was a copy of the memorandum decision by the arizona court of appeals so that would have been on november tenth two thousand and twelve your honor your honor there is no case law that indicates whether or not he has a responsibility to do it or not is that this case is is fairly unique in the line of cases that was cited both by mr american by us in that nothing was actually filed here we never got a motion for reconsideration filed so there was no rejection of it for being late in the case law that was filed by by petitioner and by us all those cases for example i think it was the sim case that i counsel referred to the mail was held on past the time frame for filing it was submitted for filing and at that time the court rejected it for being too late now the courts have said that where there is an opportunity to to correct an error then that should be taken and access to the courts is not denied and i believe that was judge easterbrook in the but i'm just trying to wrap my head around this notion that mr merrick has done something else given that he did what one would expect he would have done that is the third motion for reconsideration and he offered it up to the legal services section plenty of time for it to be filed when it was returned to him what he knew was that carolyn lee thought he was represented by counsel and whether it was a mistake for her to do so to even take that leap or otherwise what mr merrick easily could have done which he did with the petition for review is submit the order that said he could that tyrone mitchell was no longer his counsel and that he could file a motion for reconsideration or a petition for him but every time but he did correct her four different times about this question or several different times about whether or not what she actually sent was what he wanted or sent in the explained it pretty clearly and she kept saying no he kept saying no you're wrong until i sent it out  reconsideration in the title is completely different from attention purview i know that the court knows that however what she thought for whatever reason was that once she got that petition for review she thought she was talking about the same thing in we know that's the titles are different and she made that mistake but nowhere along that line either did mr merrick indicate that the motion for reconsideration needed to be refiled and mr with respect to the standard that we should applies to the witness stand or a deliberate indifference and your honor i would if you're going to create a standard for an access to the courts claim whether it's under the first or fourteenth amendment i would indicate say that the court should apply a deliberate and different standard in reviewing the case thought there's no cases that indicate for due process violations or  other access to the court's violations that mere negligence is necessarily enough there's like section one hundred eighty three cases in general there's got to be something more then just  mere negligence for example in medical cases there has to be deliberate indifference to to medical need or deliberate and difference to an inmate safety there is reference to the d case and which also references the root ruiz case and i believe that's out of the seventh circuit or know the routes cases out of the southern district of california where they suggest that near negligence is enough however that was from a reporting recommendation of a district court that was not adopted by a district court and i would say that the majority of the district of the circuits have indicated mere negligence in an access to the court's claim your honor i would say the the negligence part is comes into play in my opinion and i think in the district court's opinion when she mistakes mistook the motion f that's correct your honor and i do think that if you're looking at her actions in returning the motion for reconsideration on november seventh that at most that is can be considered negligence especially if your honor and i know your honor does not feel she should probably should have taken that step instead decided that he was not proper and that he was represented i would posit that that is  negligence in this case and that that would not constitute some deliberate or intentional action that would justify finding her in violation of the fifth amendment or the access to the court's claim  with that said your honor as i know i'm running out of time i don't know if the court has any questions regarding the claim we of course did not have a chance to respond to that the court the district court in addressing that claim dismissed that on their own during the screening i guess my main question about that is i mean one has a healthy suspicion about the sincerity of this claim given the fact that the conviction essentially for the same kind of communication but does that have a is that properly done at a screening stage your honor i i've never seen it done at the screening stage i don't know if it's proper for the district court to go beyond the record it in determine that i would say if there's any case for that it would probably be this one however i did not see any quite honestly any case law that that says one way or the other whether or not the district court at screening can go beyond graver regarding whether or not there was any indication he had access to other means to confess or to get seek spiritual guidance mr merrick in as a matter of fact in his i can't remember if it was his mo reconsideration or an initial appeal indicated that the letters that he was writing to his i think it was his prior pastor clergy constituted just that constituted his confessions and his spiritual guidance and that i think one of the claims was that's what i was asking about being monitored in the sabbath like opposing counsel  way or the other i don't think there's anything in the record beyond what i just indicated that he was able to communicate via letter with his prior clergy my  he was offered to write to clergy but it's unclear from the record whether those letters would have been on monitored and that's something that could be developed on remand but in any way in any event america does allege that his religious practice requires him on monitored phone calls and that is  on your t sixty three additionally in response to your point judge first on regarding whether or not it's appropriate for someone in the lease position to be screening  the access to courts and dissipates that there is something that's pending correct and that the inmate would have the right to  pursue and maybe that's the darkman here where the not miss lily is becoming a gatekeeper in determining whether or not it was appropriate for for a mystery to proceed but it seems to me that the access to courts pres upposes to a certain extent the legitimacy of the proceedings the existence of the proceedings and the right of a person to pursue this particular cause of action and to extent that here there's been a determination that in the normal case the senate someone has an attorney and in that case his access to the courts is being protected by the attorney correct yes are you saying that in that situation that if you had an attorney and his attorney was litigating on behalf of the inmates that the inmate was still have a right to independently file separate motions for reconsider because the defendant really the action whereas if he had an attorney and he still could have filed it with the attorney and the attorney still filed it and then he wouldn't have the actual injury he had also refused