good morning ladies and gentlemen our first case for this morning will be striking back against fan denson mr johann the court this morning i was taking all of your questions today i may be reading them off of the screen in this case three major things went wrong and the end result was that mr strucken back was deprived of his property without due process of law and as i talk about the facts here i want to emphasize that this was a summary judgment case so my client gets the benefit of the doubt on any factual disputes so first there was a major shift in prison policy regarding the disposition of being made property and  minimum the disputed facts on that point and several people responsible for that third bandanas it actually had his hands on the property and he destroyed it even though he should have known about the failure of notice without it that it could use a word about his lack of notice because whether he personally read something for example on a bulletin board isn't really the institution's fault is it well here policy was not in the library only policy that it was the old policy and they said minimum is a disputed baptista whether the policy was ever posted on the unit bulletin boards and no one contends the policy was posted in the mail room which might have been the most logical place for it circumstantial evidence that it wasn't there it is it's one piece of circumstantial evidence yes and he isn't in may so he yet he has pushed no knowledge of what's on the bulletin board and the only evidence contrary to that is that general powell c which may or may not have been found in this particular instance could you say a word about yours you seem also to be arguing a theory that if things had gone correctly he might have had the chance  to have a partial shipment of his goods even if he didn't have enough money to ship everything yet so under this well under the previous policy assured that that would happen and the fact that the fact that the property was destroyed because he did not have enough money as it made account when he didn't know that he had to worry about the act now is they can still doubt if they filled out this form this authorization form that they should have done when he dropped the property off would it have shown you know this is going to cost one thousand dollars or whatever it was yes so there was a there was a there was a form and just just just for clarity i'll say it was actually is true relevant points here there was a form that senior supplement separate appendix that he did fill out which just list the property and list of second option there was another dispersement form it would have authorized the president to deduct that shipping cost so they have every incentive not to lose that point because if they have lost that form then even if mr strucken back had enough money in his account to ship the property presumably they wouldn't be able to deduct it and so the whole point of the policy to move quickly would break down so that's all the more reason why the absence of that born in the absence of that record should have been a red flag depend qualified immunity so it was clearly established that the that one cannot in force of acquirement sanction inmate for violating a reply and if the inmate does not have notice of it and a reasonable for the reasons i've been talking about would know him he was about to do just that so can you why you're equating the destruction of his property with a sanction and it seems the prison very well may say it's not a sanction just means you abandon it more or less and and and i don't think that's right and even the policy both the new and the old prison policy recognized that even if the property was not picked up on a visit the inmate still had rights in it that's why that's why they gave him this second action and the and and they called it this position policy but the at least can't necessarily control what other people outside the prison are going to do and so the policy theoretically gave the inmate chance to identify what he wanted done with this property and the problem was actually did not have sufficient did not have sufficient safeguards that that ensured that that the inmate would be able to comply with the requirement to keep enough money in his account so that's because no one told him that he had to keep fact making matters worse the old policy which had a different requirement but still live it so that's part of it and then when he dropped off the property he was not asked to fill out disbursement request or told the shipping cost and there was no suggestion there of this new requirement so at that point yes in light of all those facts he did not have the opportunity to comply with the policy lot of the policy so far as i can see is perfectly valid the potential problem in this case is that the plaintiff didn't have notice of the policy the warden is responsible for the policy but the policy is not implemented correctly why would the warden be liable for an incorrect implementation of a valid here the incorrect the incorrect implementation would have been to a seeable from stuck because this is  any public official who establishes any policy will foresee that sometimes things will get messed up it's just inevitable so on that view every every governor every member of congress the president all the time if an f b i agent shoots somebody who shouldn't the president would be liable for the policy of allowing the f b i to carry guns is that right or here i would say that the situation is different because those specific points in the process or the specific point where the inmate drops off the property there's a specific point where the property is destroyed and at those specific points something could go wrong it's not it's not you're making a broader argument which is at least it would address part of what judges are brokers talking about that you don't think it's a valid policy because it doesn't have enough safeguards in it it's fails matthews against eldridge i thought you were arguing now if you take issue with whether it's a valid policy then you're it a different level of discussion at least and well that is that is one of my arguments and also i'm and just to be clear i am also making the argument that even that sergeant van dams and then forced this policy and the powers the even the even if the policy is perfectly valid here the privacy was inforced  denson point i think all right so your time is up i'll see if i'm going to give you an extra minute but let's see how the the other argument goes thank you good morning good night please the court my name is ed we got pots and i here on behalf of the state defendant in this case the main point that i want to mention today is that from the state's perspective this policy is completely constitutional it is it is a valid policy and striking box claim fails no matter how you characterize it because given the fact that it's it's a constitutional policy he has not alleged anything else that implicates the due process clause well he's alleged that the state took his property without notice without giving him any chance to perhaps give half a loaf he's alleged some into surely you agree that it's property and it's my understanding from this record that it's not property he was not permitted to have in his cell it's simply a convenience that you can send it out has nothing contraband about it you know he just trusted the institution to handle his property and the institution destroyed it correct and i think the critical point is that not every deprivation of property triggers the due process clause and we would argue that this falls in that realm of either random unauthorized acts that just simply don't and maybe it's not quite in this statement but there's a point in the state's brief where you're discussing matthews against eldridge and talking really about only the state's interest  but of course there are lots of interests there's a private interest at stake in somebodies interest in his properties photo album irreplaceable maybe a legal documents more replaceable i don't  know and the question is what safeguards to the state have in place well apparently none if plan b doesn't work there's no notice in the states taking a very aggressive position there's no right to notice of this policy there's no right to provide feedback to the officer who's the bailee sort of the if probably you're pretty to indicate where the just want to have it sent back to your cell which would not be a terrible burden on the person  dispute about whether they did either one of those because when he goes to the library it's the old policy that would not have caused the problems and when he looks at the bulletin boards he says it's not up there well that's some circumstantial evidence that it's not there it in two places to provide constructive notice there is no dispute here that the policy itself provides multiple instances of notice of what will happen to your property if your second option if there isn't enough money in your account right now i understand i totally  has notice and then but wait a minute you have to be arguing that if the state promulgated supai will see if the prison cromwell gets a policy and the warden just puts it in the top drawer of his desk and there's no notice to any inma that as long as the policy has language in it that says and this will be posted on the bulletin boards and put in the library that the inmate has no claim and i have a lot of trouble with that proposition i don't think that iran is arguing implicitly that some of these things were done but there is a factual dispute about that i would i think there would be a a problem here and i think mr truckin brock's argument would have merit if there was evidence in the record library and only the old policy is there why should an inmate be entitled to rely on what's in the library well now we're getting to a point where we need to specially under mass they can't you're saying inmate has to disregard w the library says no ip the record shows that he did not even go into the library and look for the policy in tell after his property was destroyed so he never went in there to try to look at the policy and see how should i handle my property so you know you think the policy that the lottery was holding changed between when he looked in well we don't know we don't have a record for that unfortunately but what i'm saying is that all of these we're not saying that that mistakes didn't happen we're not saying we wouldn't be here no mistakes ha small mistakes happened here and we but but our whole point is that these do not rise to the level of a constitutional due process claim and that's kind of again what our point is that that it is it you know it stinks that his property got destroyed i can commiserate with that that's not a good thing to have happen and and i don't think mr i don't think defend events and wanted that to happen unlawfully the the problem for mr strucken bucks claim is that the policy itself is constitutional and the only other things you can only characterize as claim one of two ways and judge easterbrook kind of brought this up as well that you either are attacking the constitutional analogy of the policy itself or how it's implemented something somebody did kept him from finding out about it and even you know the difference is attendance of course maybe the warden if it's just an implementation you know we've all sorts of laws whether it's out kid or whether you know it's our vance case if it's just implementation hard to see where you're going to go after the warden but we do have the person who actually destroyed the property i think the whole question too is complicated by the fact that mr striken by being on represented at the beginning of this litigation his argument in the way characterizes his due process claim has changed dramatically from his complaint in this case through this appeal just evolved naturally because he is also now has representation but i think that really also kind of confuses the issues on what is his due process claim he started this case by alleging up purely random and or authorized act that mr ban denson did not follow the policy and that fits pretty squarely within a claim for which there is a viable tort remedy for this is now on appeal his arguments have shifted although the course actually isn't a viable tour gravity because of immunity are you implying immunity well and it would be our position that immunity is there to to take away a bunch of the claims against government officials that should not be there in the first they can destroy his property with impunity not with impunity oh yes with impunity in this case that's exactly are they getting rid of property keep in mind we are in a prison here where prison officials destroyed my property without notice all the time of the course and that i am to size it there was nothing wrong with this property if you if the president said you know we think it's a security risk to have too many magazines in your cellar we think it's a security problem to have photo albums or whatever i would think this would be quite a different case but this property seems not to be that kind of well i think your point is a good one that once an institution allows certain property new rights are created whether or not a deprivation of any of that property subsequently triggers a due process rights violation ever argued this wasn't his personal property you can't i'm not arguing that now ok i'm saying since that since he was allowed to have it that's why we're here if property through a visitor and i think that what am i to transfer i take exception to the ideas resurrection he wants somebody else should be the custodian of his property while he's in prison he doesn't want his water you know he doesn't like clutter but he is i think it's critical to do the math is the eldridge analysis that this is a situation where an inmate is choosing to get rid of some property through a certain channel and he had two opportunities for this not to be destroyed he but he didn't know he had two opportunities without being asked at the end you have to accept that i accept that i accept that he didn't know that and then we get down to was constructive notice about th enough and i i think again we get back to the state's position which is given that the policy itself is constitutional and that the and that it's undisputed that the institution has a general procedure for providing notice on bulletin boards and in the library and there's not a dispute on that but the dispute is whether or not it was executed properly and so the policy is constitutional here and all of the things that struck you about tries to dredge up to to create a claim simply do not rise to the level of a constitutional challenge they are either negligent acts and this court has found that mere negligent destruction of property is not a due process claim we can't prevent that we can't prevent someone our thank you very much a us if you would like one minute and one minute only i would give that to we have we have a person who actually destroyed his property even though he had the facts before him that showed his lack of notice and we also have the person who was responsible for the problem with you distance this policy that was that created the situation and was enforced against him and if the no for the questions thank you all right thank you very much and we appreciate your taking this case and the help that you've given to your client to the court thank you thanks well to th