morning your honour's may please the court patrick kerry pro bono counsel for appellant mr timothy howard i'd like to reserve one minute for rebuttal please all right your honour's the court below committed a number of reversible errors when it entered summary judgment in favor of the officers in this action summary judgment requires an absence of material fact here however howard who is proceeding pro se at the time brought forth the affidavits in missions  responses and documents that show a genuine issue of material fact existed as to whether the officers retaliated against him in violation of his first amendment rights so councilor i prefer shade that you probably want to get to this argument because that's the merits of the argument but what's this court to do with this letter mr that your client put together well your honor you know i've never seen such a letter the state filed did file a motion to dismiss based on a letter that mr howard sent the motion actually could be styled a motion to dismiss or in the alternative in a request  doesn't seem to me there's any way to warn this guy or admonish him he has nothing to lose by you not going to give him any financial sanction he you're here representing him and i'm intending to kill people and do all this kind of stuff in the middle of this i read the state's theory or i read the briefs the opposition brave looked all over for what  might have to deal with this frankly it seems to me if anybody starts giving those kind of threats we ought to get rid well i i would hope that i mean if it if i take this appeal and supposing you make a great argument and i determine that your argument is worthwhile and i take it and i do what you suggest then it will seem to him like well that's all you got to do is threaten people and then i get what i want oh i would hope that mr howard would understand that what they would hope with but i don't have any all why would i when he says and that's the thing i'm intending to kill one or more of the employees and i'm intending that's a threat made against not only them but the prisons staff and i guess i'm i mean i saw the apology but i don't think that the apology really apologizes at all but so my worry is honor the inherent power of this court i don't know why we wouldn't just dismiss this appeal and get on with life i think a few points on that i think howard does have a meritorious first amendment retaliation doesn't matter how  procedure by which he uses one's getting here well i would also point out that i think the letter needs to be read it in its entirety and in its context i did read the letter in entirety and i pointed out the lines that were most offensive to me and i just i think i think you'd have a stronger argument if we thought this falls blowing off steam i understand when you're in jail as long as he has gone through those experiences he gets upset that doesn't bother me too much but this death threat doesn't seem to me to be blowing off steam he's already tried to kill a guard by making naives himself faking strang getting a woman in there and said he would have killed her except he liked her this doesn't appear to me to be just blowing off steam i can understand the frustration of anybody in prison but if it would been just a letter and he had no prior experience with attacks on our jail people i could see your point but don't we have a different case here when his his track record is one that says he really intends to carry this out and if you don't if it doesn't come out the way he wants to come out he's going to take action i think he did take back those statements and the apology letter that was submitted and i think that assaults on i believe you're referring to the different assaults and i think i don't think we can take that as character evidence that he's obviously going to follow through on on such threats here well i was a little bit uneasy about what he said he said he would claims he does not desire to harm anyone but then the next languages whiny surprising to me he was revealing that it's situations like this that creates little riots and violence because these people escape liability that doesn't sound like an apology at all i don't know that i think what mr howard what he says he's trying to express in the letter in the first letter he sent he said he was trying to express why prisoners end up resorting to violence in prison now this was a prisoner who was attempting to avail himself of the courts and been told to stop stop utilizing violence and to start availing himself of the grievance process and the courts he tried doing that he was validated in retaliation as a result and he spent what he believes he'll be able to show on remand that he spent an additional three years in the shoe at pelican bay as a result of the officer's actions so i think what happened was that you have somebody that's and then his case gets dismissed it's summary judgment when he thinks he has a very strong case and i think he's right he brought forth a lot swallow what i have done what he's suggesting i have given him what he wants so that the threat does not happen and if in fact i go the other way then i don't know where i'm going and then i look for sanctions there are the monetary sanctions there are none that i can give in fact as i already pointed out we already appointed you for him there's no way to give him a monetary sanction and a admonishment on this is nothing specially if in fact i go with you in your argument it's as if i have on or to his threat i don't think mr howard would would understand that a reversal here and that i have met with mr howard and i don't think you would understand that a reversal here was a result of his threat i think he understands that i guess i'm having a tough time understanding that because judge wal absolutely cleric correct about his former actions he does have he didn't there are a number of former actions in the record but i don't think that those actions show that he's serious about acting here i think that's that's character evidence that doesn't show that that's what he's going to do here just real quick because i'm coming up on a minute left here as far as the admonishment goes this is all he has left is access to the courts is the grievances in the prison and access to the courts that's all he has left and i think in monish many would be a very would be taken very seriously because if he doesn't have access to the courts he has no recourse left and absolutely nothing he will ask why seems to me dismissing this appeal absolute i'll tell you what why don't you give me two minutes of what you want to say on the summary judgment so you'll have something to to respond  i mean i know i took it off course and frankly i thank you for being is pro bono counsel you're a good person to do that and you've done a good job and i appreciate that effort and i wouldn't want you to go away not me thinking you didn't have a you think i didn't think you were good counsel for doing what you've done but i had to leave with you my stern if you will  and to my to my thinking consternation about what i do in a situation where somebody says if i don't get my way i'm going to kill everybody and having  law and holding that the officers had not taken an adverse action against howard both officers threat to validate howard and then sue invalidation were adverse actions and i want to be very clear on this point  upfront about the scope of the evidence that was submitted in the validation procedure page two fifteen of the record makes this very clear that there were four pieces of evidence submitted in the validation procedure and it was those four pieces of evidence that were used to validate howard now two of those pieces of evidence came from officer harris and the third piece of evidence came from officer martin howard would not have been validated on the sole remaining piece of evidence that was submitted by another officer so the validation was actually an adverse action because it was the natural proximate result them somebody in this memoranda additionally the threat under this court's precedent is is another adverse action now the court below also overlook the  sorry there's also to dispute a fact as to whether the officers were acting out of retaliatory animists there's direct evidence in the record of the threats in the form of an affidavit from mr howard and in the form of an affidavit from another prisoner now additionally there's circumstantial evidence harris's to memoranda describe property allegedly belonging to howard but the officers have admitted in discovery that they cannot produce the proper improper documentation showing that howard had property at the prison for them to search now harris now claims that he searched someone else's property and that this was just a mistake but that's not an inference that can be drawn and here's his favorite summary judgment the officers have also been caught trying to change the date that this interview took place and i point out in the briefs i think this is evidence that they were trying to distance themselves from this march tenth interview probably because that's the interview where these threats were made and where another another prisoner overheard these threats being made and so they wanted to distance themselves from this march tenth interview and they used a later date in discovery howard was able to point out that he was out of court on march out at court on march nineteenth when they originally claimed this interview took place when he pointed that out officers changed what they had already alleged in their answer that this interview took place on march nineteenth and said well we were mistaken it must have taken place on the eighteenth howard asked them to point to where in the letter prison log books that showed them signing into the prison to interview him on that and they admitted that the log books do not show them signing it now this is important because additionally on top of this what we had below in the in the prison howard is able to partake in an informal investigation process on his own  in regards to the validation and he submitted a number of questions were basically informal in iraq that's where he is to these officers and they told the investigating officer in that case or in that situation that the logbooks show them signing into the prison on that day now under oath in their admissions in the iraq the tories they say the law books do not show a sign in all this taken together is circumstantial evidence that the officers were acting out of a different reason or were up to something in retaliation against please the court deputy attorney general kevin vote for defendants their owners this court should dismiss howard's appeal as a sanction for using death threats as a litigation tactic when he wrote to defense counsel informing her that quote if this case is not reversed as required or settled by c c r as it should i do intend on killing one or more c c r employees and the courts not countenance this type of egregious bad faith conduct and should grant defendants motion to dismiss however if the court chooses to reach the merits powers of television claims nevertheless affirm that terminating sanctions here are warranted there are there are less crass ticks sanctions  would propose and dismissal because your motion didn't say dismiss period no your honor although the motion did in the conclusion say that in the absence of any other sanction that would be imposed by this court at the very least he should be told and admonished that this is unacceptable behavior but i would submit to the court that there are no lesser sanctions available to this court to penalize mr howard and deter future misconduct let me just ask you that we're talking about the term mr howard if it turned out to be true that the officers did retaliate and did threaten him and did provide false information so that he got validated how if we dismiss if the court were to dismiss it would be unable to reach the merits of the case and would be unable to howard not be able to achieve a remedy if that were true but howard's conduct in this case is so egregious and it's directly related to his he's expressly made these death threats for the purpose of influencing the outcome of this case is that i mean it's very hard to to measure or balance bad and bad but what about prisoner who went through the system and did not badly on his own in trying to do these things to get justice for what he claims happen in europe maybe some proof to s corroborate what he says are you saying that it's more important to admonish were punished this prisoner who was using the court system to get what he wanted or is it more important  to let the officers know that had they done what he said or if it turns out they did what he said that they can get away with it we are the judicial process is available to litigants so that they can vindicate their rights and deter misconduct when it is proven however here mr howard his conduct is so agree just and beyond the pale it undermines the integrity of the judicial process itself if he can make death threats as part of an espresso effort to try to influence the outcome of this appeal here trying to either coerce a settlement or otherwise overturn the judgment then he has engaged in conduct that is not only detrimental to the what do we do we don't have him in front of us we can't assess whether or not he's serious or whether he's just trying to make sure he gets his case to but at least he's made an effort to say i was i was wrong  overlook that and if not how do we win something like this oh your honor i would disagree that he is shown that or accepted or express any sort of contrition in this matter and we have his own words  that demonstrate that fact in his after defendants move to dismiss this case he filed an opposition that did not retract his threat or backed down or walked back any of his his comments about inflicting violence as as a means to affect the outcome of this case he said that he he was justifying his statements because of prison conditions he went on in his apology his so called apology letter to say that in fact his letter was evidence that he had showed great restraint by not affection waiting is his threats and that he would wait until the case ran its course which is simply a reiteration of the fact that he means what he says as you pointed out just well as he's engage in this type of conduct before ease admitted on the record that he's used threats of violence when prison officials have not responded to his reeve insist is that his faction he lured an officer into  and then attempted to kill that person and so it's not to show that he's certainly going to do this again but it demonstrates that it's a type of misconduct that the court has to take very seriously and a mr howard's own words demonstrate there's no dispute that this conduct is the epitome of bad faith and he expressly made it for the purpose of trying to influence the outcome of the appeal and there's no dispute that he sent the available in this case and his his apology letter that says i showed great restraint by sending a threatening letter only shows that he would not be deterred by an admonishment or mere warning that he in fact has no qualms about making these type of threats as a litigation tactic a tool to affect the outcome of this case and so it go back to the merits as judge will and to the merits  martin in defending harris's validation memos served a legitimate correctional purpose regardless of the the statements that were made and defended martin's memo documented howard the attack on officer patel on august twenty first and its connection with george jackson the founder of the black to real family prison again and this are those facts that are contained in the memorandum howard has conceded he admitted that there are essentially correct that he chose august twenty first to commit his attack in connection with george jackson he said it was because of the effects of george jackson and that it was the principle that he needed he could not compromise his principles he needed to kill an officer and be prepared to die himself so the  defendant martin's memorandum served a legitimate correctional purpose of identifying and combat ing prison gangs it was but with respect to defendant harris's memorandum the  the property he it's undisputed that defendant harris searched it was the memorandum document at the search of howard's property when you're no no no it did not document the search he did not deny to defend it harris that the property was not his he made this comment saying that read the name on the folder and defendant harris testified that to his knowledge  that property belonged to mr howard even though it had a different first name and number and number was going to say not only name number that that is what mr howard's testimony was however i don't believe that that's sufficient to show that different hairs actually knew by dropping it all we got to have here is that is enough evidence to create a fact i mean in the end with everybody in front of everybody and everybody hearing both sides one can make a decision but based on what's in this record i'm worried that well i'm not worried i'm saying i don't know property from the property officer who said that it was belong to howard's and that howard's testimony was enough to show that he actually knew that it was not his side really we're going to have to have some cross examined some testimony to get to the bottom line are w i mean we can't just say this is automatic are we can we i mean i don't think the state would argue that i would agree with that your honor and then what if we get it further loans memorandum i guess i don't understand why the district court shouldn't of consider the memorandum it was attached as an exhibit to howard's complaint i think if i were going to be in the district court and we had this memorandum attached to the complaint i'm haven't been tough time adequately allege retaliatory animists on the part of defendant for along what he alleged was that there was a conspiracy between him and defend his hairs and martin in order to validate him and that doesn't meet the pleading requirement for sort of factual data to support that assertion well that and he also asserted that even though he was accused of speaking as well hi i say that i was reading as i don't know how to say that name the charge was dismissed and was never been entered into the official record he does make that allegation on or however that goes more to the merits of the validation and whether the validation procedure itself was a good fit again that makes it in the other summary judgment problem i think for in that case you're on to defend it with respect to defendant for a long it doesn't go to his intent it goes to the merits of the validation determination well if the matter that he relied on had been dismissed and he still pretty thin as a basi disciplinary infraction should not have generated the memorandum that he did all that defended furlong could in the memo which he attached to which howard attaches complaint is that he o the memorandum in his central file that related this information thank you thank you thank you very argument we'll give you a minute inside took you i as to the argument on whether the officers were acting out of legitimate or to further a legitimate pain a logical goal bruce versus yields to it's clear that officers cannot escape liability by arguing that the prisoner arguably ended up where he belongs and i think that's what we have here there's a dispute of fact on why the officers were acting i believe the record shows it was out of retaliatory animists and rational church could certainly find that returning to the motion to act to act on the motion to dismiss some of this inherent power now one of those factors is whether is that there is a lesson here sanction available so i would just ask the court that i think about that if it's going to if it feels like it must act on this thank you thank you again for taking the all right case one five one five eight to