or stated retaliation claims second qualified immunity isn't a political and third the district court abused its discretion when dismissing his complaint with precious without affording an opportunity to amend his complaint first now that states a claim it's possible on its face mistrial has done so here it's going to mr and there's retaliation claims there are two questions whether he sufficiently alleged he was engaged in protected conduct and whether he sufficiently alleged that the application of the prison regulations or the sanctions were not rationally related to a legitimate purpose just just so i can be clear it's retaliation for a bit in retaliation if you were if he engaged in protective conduct so the prison what he thought was required no your honor review of the record show that mr ehlers informal grievances specifically threaten to sue only to enforce the legal rights he believed he was entitled to in good faith appeal all the sanctions all the way up and he attempted to file a formal grievance but was denied the opportunity for that grievance to be entertained by the grievance order because he'd been sanctioned so what if the day was writing letters and he became like a nuisance like in brooklyn we have a frequent flyer filing we have people who you know filing complaints civil lawsuits actually every day and this year we sort of like have to manage that because otherwise we're inundated with cases all the tarred by these single you know filing does it come a point in time here if he does is fired and i'm sixty seven times eight times and always that the authorities can say enough is enough corrections may be free to do but that's not issue here so question is whether or not mr ali was engaged in protecting conduct when he threatened to sue those what if the rule instead of six thirty three which talks about coercion and intimidation said that and he's also alleged you know we're looking at his complaint right now and he's alleged that he was retaliated against for participating in the grievance process as explained in and developed by the department of corrections for the content of his grievances they said they thought they  sanctioned him because he threatened to file a lawsuit and all that is protected conduct in the circuit let's let's say that we agree with you i just speaking only for myself i'm actually tempted to agree that he engaged in protective conduct but the next question if because this is a damage suit help me out with qualified immunity how obvious would it have been to the defendants here that this was a constitutional to the ritchie decision which was a two thousand decision both the judge fleischer and judge gould you had participated in the court didn't actually reach the qualified immunity question at the motion to dismiss stage  again in terms of satisfying qualified immunity existing case law and the circuit has established that law is sufficient to meet that standard such that a defendant would should reasonably know that that's the law and if he's violating it he can be held liable for this is an odd sort of question and i'm not sure that it's sort of a complete response but if it's so obvious why are you asking us to reverse the district judge  n officials that we can say it was so obvious we're going to get damages against you when your argument is that a well trained lawyer there is to say a federal judge dismisses the complaint as american us well i can't speak to the reasons why  could dismiss this claim on the ground in a firm the magistrate judge what i can say is that if you look at their decisions and judge sukkot adopted the magistrate judge's decision on the qualified immunity issue right they took a very narrow stance on on what was at issue and in that they made factual assumptions that mr antler was using the grievance process as a guys to coerce and mates and all these things are questions of fact and none of that has to do with anything at this point in the proceedings which heller should be afforded the opportunity to amend his complaint to also specifically allege has implicitly declaims first second mistrial or should be afforded the opportunity to conduct discovery to verify in fact that every one of these defendants was fully aware of what was happening and was not find their constitutional duties and i suspect that that would in fact go to a jury trial i see the jury would be necessary ultimately to determine whether this was an appropriate p running out of time sees me if you look at shepherd versus quality and brewster says east it's clearly established that if you allege retaliation and retaliation is found to specifically with this arbitrary sanction for example regarding his line that's sufficient right there along to in the case as a matter of law school if i could check the question isn't the issue for us whether the case could be dismissed on the pleadings without a factual record so that if if we send it back whether there could be a summary judgment or there would have to be a trial that depends on the fact record as opposed to that w does become the qualified immunity issue be decided without any factual record i think in regards to the allegation that he was arbitrarily sanctioned for line it could because the about before we decide the qualified immunity issues where you say i think there are i think for it depends on what you're looking at so i think there are multiple claims for one of them i would say there is not because the facts are clearly established in the record that mr antler did not i don't think there is a meaningful difference on that threat to file a criminal complaint was also implicated in roads and this is this court's decision and and that was i don't not sure they are the qualified immunity issue in that case it was yeah that says you also have the right through you know file criminal complaints at the time you want to against is official with the least qualified immunity analysis regarding yesterday perhaps regarding that one sanction your honor that might be subject to qualified immunity we've taken you over let's hear from the other side but we will give you a chance to respond thank you so much  against coercion the district court's decision to dismiss mr employers claims should be affirmed for three primary reasons first defendant's actions serve legitimate pain a logical interests second and i think it's we're entitled to qualified immunity because they did not violate mr outliners clearly established rights and third the majority of defendants did not personally participate in the writing of these alleged infractions let me ask you this question you have a series of disciplinary action that has been taken against this person as i read the record there was the first batch of disciplinary proceedings compas three of these kites one of which was the criminal complaint but there was one on july twenty sixth and the use that when this example of what i'm concerned about this was the issuance of a serious infraction for the july nineteenth letter he sent that the religious program manager threatening to sue to protect his religious freedom about that he wanted to have directly filed a civil lawsuit would he not have the constitutional right to do that yes your honor but to be clear what the coercion was in this circumstance was not the fact that he wrote the letter to the religious programs manager it was  three and said that you know he is restricting my religious freedom here he would have the right to do that would he not yes you are assuming it was not complain about it it seems that's less offensive gives the person the resolve this matter would have to be defendants in the lawsuit restricted want to beat a dead horse be to have the right to go directly to court right absolutely or are but but in and the prison context inmates have to exercise their first amendment rights in a manner consistent with legitimate pina logical interests of those words but this makes no take action such as filing criminal charges now i'm told that the civil law now the one may be a separate consideration the civil one even though even the fact that he's threatening civil litigation he's sending that complaint to the religious programs manager and then sending a copy to clark as if to say look i'm complaining about you i'm going to sue you so here make that decision i just explained to you why i'm confused you tried your best and maybe want to go on to something else sure are even if the court determines that there is a statement a constitutional violation here defendants would be entirely qualified immunity based on this court's case law the hardest decision recognized that a course in regulation in a prison setting serves a legitimate i just was not a qualified immunity case that is correct your honor but in this case i think the district court judge actually did a pretty admirable job in trying to rectify hargus and brought hime those parents those authorities appear to be pretty parallel to brought hime case doesn't discuss hargus at all or try to rectify hargus and so the district court was struck with these parallel lines of authority and to try to rectify and come and make them consistent and they just report basically said there's really no way to do so and when there is a  additionally bradley and brought him both dealt with the formal grievance process and they specifically relied on the fact that the him it was a using the formal grievance process both bradley and brought home recognize that there is a general piano logical interest for disrespect regulations in the prison context but they said that that that connection is very very weak one applied to a written formal grievance these were not written formal grievance these were threats to take action against  between informal informal that's what you're urging that if he doesn't take on a formal aspect that this is a force of a different legal call absolutely your honor not based on this court's decision brought hime proudly and richie which all discuss the does because the analysis of the court uses is that whether there's some kind of less restrictive alternative that a person could use to applying a disrespect regulation in the context of a formal grievance in the in the formal grievance process there is a way to screen individuals from the complaints that's the entire purpose of a formal grievance process is that they have designated staff to handle the inmates complaints and the court said that the application of disrespect regulations to that kind of formal process is a very weak connection between the legitimate please i would like you to address one question of interest to me that's is there any fact here that could be developed that would shed light on whether the defendant themselves out of court by include including a lot of factual information here mr anglers complaint included all the relevant information needed to make them more saying a kite that threatens to sue someone who is not protected even though suing them would be protected no your honor i'm saying that the application of a coersion regulation to dock type of communication center recreate a prison staff does not  rights because this court has recognized that generally coercion regulations in a prison setting serve a legitimate being a logical interest but why is it coercive meaning i'm threatening to sue well i'm threatening to sue if i write would threaten to sue if i write it informally i can understand why the prison might have rules as to what things you're supposed to put in a formal complaint for purposes of sort of bureaucratic regulation is austin and so on but why is it more or less coercive depending on whether it's in a formal or informal complaint because your honor it's directed to the staff who is making the decision it's threatening i'm going to sue you if you do not make the decision  understand that but if you write it in a formal complaint i'm going to sue and names the individual well and has the same consequence of the person receiving that information that you're going to sue that person i don't understand why it makes a difference as to coercive ness and now assess the form in which it's communicated whether directly or indirectly because if your honor if the threat is to the person making the decision if you don't do x i'm going to do y th more limited first amendment rights and so a letter to a demand letter by an attorney would be different than an inmate sending a letter directly to prison staff and i think the entire context by which these communications were conveyed and i see i'm going to sue you remove this elephant yes or no will you remove it but the response is ok go ahead i mean as judge bloch said well in an odd sort of way although i don't think it was mr antlers intention to be polite it was more polite to say if you don't do x i'm going to sue you instead of simply well you just susan without warning now i realize this is kind of fantasy idea that he's trying to be polite he's not trying to be polite but i have trouble understanding why if he can sue directly without saying he's going to sue it's worse for him to say i'm going to sue i think it's because of the course of decision specific to mr antler based on the fact that he was willing to threaten them as opposed to trying to argue with them and persuade them based on the merits of his claim instead he's saying do x or i'm going to do y and that is coercion in a prison setting and if that's not coercion ok thank you thank you we've taken all your time but let's put a minute on the clock i think i'm correct you're doing this is part of the problem a project please correct i think your honor system a couple of quick points first defendants concede that mr miller does have a general right to complain they take issue with the fact that he has threatened a lawsuit but this court has established in jones that you can threaten to file a lawsuit and that's protected conduct a second this is an argument that occurs to me i wasn't given this answer i was of hoping maybe i would but here's a possible argument as to why it may be course where as a suit is not if somebody does something i don't like it and i bring suit well we've got a federal complaint done if someone does something and i say if you don't take that or if you don't correct that action or whatever i'm going to you that is designed to produce future action in a way  and second going more specifically to your question this is informal resolution this is an informal grievance mr and there has been following the procedures that the department of corrections had corrections has held out that he should follow and so he engaged in resolution has a twenty day time period from the time that conduct is occurring the offensive conduct occurs to file a formal grievance so he has twenty days down where he can express or ensure that he can meet that deadline is to say i'm going to file a suit you have seven days for example before i coersion so physical force and to mediation coersion so if i were to say i'm going to kill you but i don't kill you is that or does that or violate the regulation or no that's not protect honor that's a criminal threat but does it cost the course i'm trying to figure out of within the meaning of the regulation i think that would fall probably under a different regulation if you go through the wax that were provided in my brief on the a done then you'll see that there's a it fall a formal grievance to come into the regulation the person correct or so the regulations are generally applicable to prison conduct they're not unique to the grievance procedure but the informal resolution is part and parcel to the offender grievance program  specifically says that you could follow an informal complete before you bring a formal complaint yes in fact the grievance procedures specifically direct inmates to do that inmates are quote expected to first attempt to informally resolve their grievances and one of the means for father you're quite so there's a little bit of ambiguity in the grievance procedures on that front but the grievance coroner has discretion about whether or not he's going to accept an informal grievance or accept a complaint and so if you look at the record your five ninety i can get the say in a second but basically it says that the grievance court nater will ask the inmates to report what informal resolution they've actually attempted and then after that the grievance corner may suggest other forms of informal resolution that they should take and then if the matter is not properly resolved that's the language of that sort only at that point can then make then check the form of our hearts are greater than the cook the grievance absolutely absolutely specifically addresses whether prison officials reasonable prison officials should be expected to have a thick enough skin they can get a letter from  events no no the conduct in jones that was considered protected occurred before so occurred in two thousand and seven and that's what the decision came after the decision came after but the right was was a stablished in two thousand and seven it existed in two thousand seven hundred johns so i would sometimes i just refer you back to the section but i would say that there is no other circuit that i'm aware of that has decisively made the decisions like bro is united states versus springs