unless the court has initial questions i would like to address what i believe are the crucial issues in this case the first course is that we are looking at this case in a summary judgment posture rather the court is looking at this case and so on summary judgment summary judgment novo summary judgment is only appropriate if the evidence read in the light most favorable to mr remedios demonstrates that there is no genuine issue of material fact the evidence in the record clearly demonstrates that there are several because he was a signatory to the petition his cell was searched his parole was revoked he was placed in solitary confinement for over four months and he was transferred to a maximum security prison or a higher security prison because of the put in solitary because they found contraband it is so well your honor they found contraband in a cell after they searched his cell do they need a reason to search zone they do not but they cannot search a cell for an improper reason any retaliation for exercise of valid rights that are retained by prisoners and i think the case was very clear on the point that prisoners retain their rights to file prison grievances and petition for for prison for prison grievances and if the  well your honor the question is precisely whether those whether it would have occurred had it just been that they found a few pieces of contraband in his cell if he had not have been a signatory to the petition the allegations as mr  them forward in his verified complaint are that he was punished in this direct manner because he was a signatory not because the cause was a good tory he was punished because of the contraband and you may argue he wouldn't have been caught with the contraband but for the search that was prompted you allege by this wrongful motivation but he was still caught and there's not an exclusionary rule that i know of that operates here so i'm not sure that i understand why it is the parade of horribles that follows isn't cut off right there he did disagree with that your honor because he would not have been punished in the direct county in that or that he was were it not for the fact that they were trying to send a message to people not to sign petitions of this only found a night in his cell but then suppose they found a knife in his cell well then there are there may be a more clear case that the what happened afterwards was justified but in this case there there is no evidence that he was a danger these pieces of contraband do not merit the same type of of draconian punishment that he received and their additional excuse that well we were worried that because his parole may be revoked we have to keep him segregated and separated but that just doesn't wash couldn't the authorities law enforcement authorities have legitimate reasons for investigating someone because of something that person and the exercises first woman writes i mean supposed to write a letter to the president from title do and then i say some pretty nasty things not that i'm making any direct threats but enough so that the secret service says gee this is somebody want want to watch is the secret service precluded from checking the out just because i'm entitle to petition the government well your honor that's a good question i think that both the bradley and the bruce cases address that issue that bradley specifically says that you can write things that are fairly derogatory even threatening the bradley case says and the prison authorities aren't justified in punishing him for that and that's what point that is part of the point your honor and i think that the initial point as well that the judge silberman and i think just flipped and also suggested that the argument might stop at is is an additional point that the fact that he was searched to begin with context well they can do as much searching as they want in the present context but they're not allowed to search all black inmates for example they can search for whatever reasons they want as long as they're permissible reasons you can't search all hispanic inmates or all in this case filipino inmates or all inmates that sign petitions that's just not fair and it's not constitutional so they can search for lots of reasons but not for invalid reasons much like a employer can fire under an at will contract for for many reasons but not for him permissible reasons what if the motives were mixed well then this case is a summary judgment your honor and i think the fundamental problem with the lower court's decision was that they credited the the court credited the defendants account and discredited remedios account and that is impermissible it summary judgment so if if this court were to find that the the voters were mixed i believe it would have to go back to the lower court to decide what was the primary motivating factor and whether or not one factor predominated and i think the evidence is pretty clear that the fact that predominated in this case at least if we look at five inmates had improperly fostered a movement to try to remove the volunteer program coordinator the second conclusion with the two inmates and two volunteers that improperly fostered personal relationships through which they used to traffic materials into and out of the  without the words consent which may be a misdemeanor under the penal code the third conclusion was that in one case inmate in a volunteer fostered a highly inappropriate romantic relationship well outside the scope of the volunteer inmate relationship want to replace the cook because all the food is too softly and they talk about that one or they don't like the program coordinator and they want to talk about that what's wrong with that well it's important not that that he wasn't punished for that it was just noted in the  isn't half the question exactly for some fact finder is whether he was punished in part for a man as well as for the contraband that was found will going back to the the alleged protected speech in this case which is this petition dated march eleventh of two thousand what i would like to just point out is that the context in which it occurred it wasn't so much the content of the speech but it was that the fact that is taking place sort of without staff knowledge for two months the staff that found out about problems through st that speech and the search i think that you've conceded that there is a relationship there was a relationship and so why isn't there a question of fact as to whether what happened as a result of finding the contraband was entirely because of the contraband or was partly because of the contraband and partly because of wanting to punish somebody for speaking out of turn that is filing a grievance not through the proper prisons response adds to the petition the gloss that to other people to other prisoners had these inappropriate relationships but that really doesn't speak to this individual at all so you come right back to the petition is best i can tell the only reason for the search for this individual was debilitation plus the fact that two other people who signed it had been involved or were suspected of being involved in inappropriate relationships i would submit there's a couple more reasons your honor one of the petition stated that they were concerned about demands being made in the program and that inmates were becoming more aggressive in meetings and demanding more contact with volunteers to find a new nice also became aware through the corridor that inmates wanted to change the nature of the relationship of volunteers they had in the would have been a dereliction of duty for them not to look into this problem given that the concerns that were coming to them and the fact that they searched points of cell did have something to do with the petition that was motivated by that and the context in which that position that position rose grievance specifically for submitting a grievance in the district attorney's office and in that case the supreme court held that one of the speech at issue in that grievance was not a matter of public concern largely it was small amount was and to the honors to respond to a few of the points made on the qualified immunity point rhodes vs robinson i think it's instructive and it's clear over and over this court has said that when retaliation is that issue is not appropriate because retaliation is clearly not protected in that context on the mixed motive point it's important that there's a burden shifting that takes place and as judge graver pointed out the defendants have not put forward anything that suggests there's a policy of placing someone in solitary confinement for four months transferring them and doing all these other parade of horribles when there's a minor administrate of rule violation did you come up with any evidence to show that the other people who have choreography in their cells are treated differently than this guy mr mediocre who's served a significant amount of time before he was released has in his verified complaint that this is abnormal that's the only evidence in the record and these terrible things happen to him and he spends three extra years in prison is transferred to a higher security institution and i think that it's it's pretty clear unless the court has any questions i see that my time is about to expire thank you very