morning good morning may it please the court my name is aaron welling appearing for the appellant mr philip lines i'd like to use eleven minutes now and say four minutes for a bottle just watch the clock thank you your honor i plan to focus today on two of the court's evidentiary rulings specifically the ruling regarding the relevance of the use of force and the relevance of the chilling effect of that force secondly i hope to discuss jury instruction seventeen eighteen  mr philip lyons a prisoner of the statement about a filed a grievance and in response and in retaliation for filing that grievance a team of correction officers came to a cell and demanded to know which inmate was filing the grievances when mr lyons admitted that he was the one filing the grievance that team of corrections officers swarmed mr lyon cell piled on top of him manhandled him into a set of restraints and then rushed him into a room out of  shot in earshot of the other inmates where they believe rated him and then issued the warning to write no more grievances at trial when mr lyons was on the stand testifying about the rough and intimidating nature of the corrections officers coming into his cell after he had filed his grievance there was an objection from opposing counsel arguing that the testimony was irrelevant and requesting a sidebar the judge denied the request for a sidebar but in open court ruled that the evidence mr alliance with submitting about the rough and physical nature of this visit excessive force right and there are indications in the record that what had happened was the judge had misconstrued this this court's earlier order dismissing a separate excessive force was describing the demeanor of the prison guards their facial expressions trying to describe how it was the conduct of these guards chilled the exercise of his first amendment right and this time without an objection from opposing counsel the judge energex did and interrupted mr lyons to state that this evidence wasn't relevant to his claim so the point i want to want to make here are two as you know why why were these evidentiary rulings wrong and how did they harm or prejudice mr alliance case to the point that in your trial if you acquired so how these evidentiary rulings are wrong that issues relatively straightforward obviously evidence concerning the physical force that these guards were using is directly pro with hiv as to whether the defendant's conduct was retaliatory which is the central issue of this case so how is it that those evidence  rulings harmed or prejudice mr lyons and the answer there is that these evidentiary rulings completely hamstrung mr lyons ability to prove the elements of retaliation claim to the jury in this case there's a big difference when you're talking about the defendant's adverse conduct and the chilling effect of that conduct between merely shouting and inmate shouting at inmate and telling him right no more grievances that's one thing it's an entirely different matter to come into his cell with the show force step on him man handle him you know send a message that you know we can hurt you if you file any more grievances and and and your honour's keyed in on this that goes directly at the chilling nature of the adverse conduct on the part of the defendants here without conduct backed by the threat of physical force and the application of physical force is far more likely to chill further protected conduct counsel in the jury though hear evidence of some of the force used against your client that's correct honor pelleas in their brief to point out that the jury basically got the gist of this that there are bread come breadcrumbs in the record that the jury could've put together and fairly and for down you know some force was used against mr alliance but i think that argument fails here for for at least two reasons first of all you have the judge stating in open court and in the presence of the jury that this evidence was irrelevant and we have to presume that the jury listened to the judge when he said that and their deliberations didn't weigh this use of physical  force and the verdict that the jury ultimately reach supports that conclusion that the jury listen to the judge secondly when we're talking about the prejudice that  mr lyons has to endure as a result of these evidentiary rulings the burden shifts to the pelleas on appeal there's a presumption of prejudice and it's up to the  that the jury verdict in this instance was not tainted and for the same reason i can't stand up here and guarantee to this court that the jury followed the judge's counsel in their deliberations  and didn't didn't weigh the physical force when they were deciding this case the same for the same reasons i can't do that the a pelleas can't get up here and argue the other side of the coin they can't overcome that burden by arguing that the jury disregarded the judge's comment because they don't know that moving on to jury instruction seventeen and eighteen and how it was the issuance of the of these two jury instructions prejudiced mr alliance case if one of authority that filing grievances is protected conduct under the first amendment and if you look at the first element of a retaliation claim the first element is was the plaintiff engaging in protective conduct and when you read jury instructions seventeen and eighteen in the context of the other instructions specifically jury instruction twenty two it becomes clear that jury instruction seventeen and eighteen would have misled the jury and made it very difficult for them to find for mr lyons on the first element of that retaliation claim and it really should have been kind of a no brainer for the jury so let me explain what i mean if you look at jury instruction twenty two jury instruction jury instruction twenty two states that the first element of a retaliation claim  whether they retaliated against first amendment conduct is protected and in this case and on this record the the only potential protected conduct issue was the filing grievances and so that sense the jury looking at the other instructions and the only other jury instructions that we had here seventeen and eighteen that can be only in jury excuse me let me back up the the only jury instructions that the jury had that discussed grievances in the context of a constitutional right were jury instructions seventeen and eighteen and so then you take a look at jury instruction seventeen and eighteen and you see that each each of these instructions contains you know a half truth and then a misstatement of the law a jury instruction seventeen states that a prisoner has a right to petition the government for redress of grievances which is of course correct but then it goes on to state that a prisoner does not have a constitutional right to a particular grievance procedure which is a misstatement of law well there are cases many many cases that afford states and prisons wide ranging discretion in in formulating their grievance procedure but once they pick a grievance procedure and it's in place and a prison says this is this is the grievance procedure we're going with inmates do you have a constitutional right to that particular grievance procedure  nothing compared to the judge consciously to know you get talk about i can't talk about that to talk about that that's really powerful stuff i assume that's what you want us to focus on as opposed to the sure enough that you're wrong about your instruction but is that your best argu it is your honor no doubt about it and i'd like to reserve the remainder of my time for about  of testify more about the officers use of force i think it's important two things one is to step back a little bit and the state actually asked for it asked for several motions and lemonade in this case but it asked for two that are relevant to this claim first of all the state said because of the ninth circuit dismissing the excessive force claim they asked for a motion in limine a keeping lions from being able to testify all about the cell extraction so what the state wanted and i actually think the state was probably correct in this regard but what the state wanted was for the tests for minds not to be able to talk about all of this stuff that happened in the cell extraction and the district court you counsel that there's a difference between excessive force and the first amendment or television play i think i think that i suppose in in some instances there could be i think what happened in this case your honor i think what happened here is you have a district court judge who hasn't does the you know the district court judge may and then the ninth circuit upheld this decision this record judge dismissed the excessive force claim and if you look at why he did if you look back at the magistrate's report that the district court judge accepted its entirety the reason that he dismissed the excessive force claim was because all of the things that lions complained about in the excessive force claim the being forced to lay on the floor and put his arms behind his back and have been in the end his back end and putting on c all of those things the court concluded were supported by legitimate pain logical reasons that is the reason why the court dismissed excessive force claim and so and that's why i think it's really important understand what the district court did here because it's a little bit confused i think by the way by the way it's been presented by by lions on appeal the court was asked by the defendants to by the defense to exclude all evidence of the cell extraction the court denied that motion in limine and that is why it's not like these you know to use this phrase phrase bread crumbs it's not like these breadcrumb snuck in despite the court the district courts trying to keep everything out the truth is that state tried to keep out reiterate all the different testimony came in lyons in a cellmate both got to testify at length about all of the different aspects of the cell extraction in fact reading alliance reply it's not clear to me what he thinks as far as actions that happened should have been able to come and that did not come in but the district court did granted this is the motion lemonade that that lions points to they did grant did grant a more limited motion just to prevent lions from effectively quote excessive force issue so essentially what the court does is you can talk all you want about what happened what you cannot do is you cannot try to portray that as somehow being undue force as somehow not being related to legitimate pain logical reasons what the court here with that kind of testimony have ever been permitted i guess i'm not quite understand that would be it would be that threat your honor would not be supported by legitimate pain a logical i don't think in the hypothetical but i guess what i'm struggling with here is that if i understand the plaintiff's complaint they're saying hey you know what happened here the way it happened the excess involved it wasn't so much the excessive force it's the way it was done that was the threat to my complaining that was the issue and we have to determine whether it is such a nature that a person of in quotes ordinary firmness could wi stand the threat the words if you if you make any more complaints then you're a big trouble right so it may be the way in which it said maybe the eye contact that you know the doctor now approach to  things i'm having difficulty seeing how to separate these two courts ruled on excessive force but there's something different than excessive force which is was what was done done in a way that a person of ordinary firmus would have been unable to withstand that pressure in your honor i think that's exactly why i suppose it's you know this theoretical question of is there some sort of play in the joints between excessive force at one level and and what would constitute something that would overcome a person ordinary furnace in theory i suppose that's an interesting question in the context of this case we have a district court judge a district court judge that is exercising his rule for three discretion and under you know as as you know just record judges get a lot of deference for the b and the reason they do is very relevant to this case and that is because district court judges they look at things in the context of a case and here he's got a case that he's dismissed excessive force claim and the reasons he's except dismissed excessive force claim is that he has decided and is in the magistrate judge decided and the ninth circuit up held that these put certain particular actions were not undue force and the reason they but the reason they were not under force is because they were supported by the two nepean logical reasons now but he so the state says ok good you know you've said that so now you can't talk about those actions at all but that's not that that's not with a district court judge did hear the district judge said no they didn't he denied that motion limited he said you can talk about those actions all you want you can charge it try to convince the jury that these actions would overcome a person of ordinary firmness but what you could the only thing he said you cannot do and if you look in the record on page sixty three of the excerpts of record the witness is going on and on well they started grabbed my legs and they grabbed my arms or stretching them out of my body go limp they to me all this aggression i don't wash my science and it goes on and on the district court judge did not interrupt him the state because it had had its motion lemonade denied about this not having to come in and did not object until if you look what he said is and they put the handcuffs on as tight as they could possibly get so what you've got is you've got a district court judge who's just trying to figure out where do i draw the line under his roof for three discretion where do i draw the line that letting the jury this is really important the five parts standard for first a member retaliation claim has three two elements that are critically important to this case not reasonably advance such an appeal a lot of the interest will in dismissing that the retaliate or the excessive force claim they did it because they decided these actions have have a legitimate pain a logical interest so you've got a judge hand you know we've got actions that have already been determined to have legitimate but but he wants to be able to testify and use those for first not retaliation claim will that pretty unduly prejudice the senate will that be confusing to the jury and the judge in exercising is four or three discretion drew the line i think it a very reasonable line i personally would have drawn the line and said none of it comes and apparently you know you may not be comfy with that but he drew the line and he said i'm going to let the i'm going to let come in all the actions you can testify all you want about the actions but you cannot characterize those actions as being an excessive level of force and that's if you follow on from six o three let all that come in i'm only going to draw the line that you cannot talk about it being an excessive level of force and he say use of force if you read on page sixty fourth the judges and sixty five he says over and over again says the use of force the use of force the use of force  is claim is no longer in and so he drew the line and i think it's very important to realize that this was a this is a judge exercising his for three disc discretion he he had two different sort of interests here he has the interest in not unduly prejudice the defendant's by allowing something that has already been determined to be a legitimate pain logical purpose somehow be used by the by the jury as not a legitimate penalisable purpose right for because they'd have to that that be something have to show one of the five parts standard on the other hand on the other hand he doesn't want to confuse the jury and so he drew the line i think in a very i think in a very defensible place but of course you don't have to think it was in a very defensible placed a poll to poll them on this you just have to think that he did not clearly if you abused his discretion that you don't have to others doesn't have to be the line that you would have drawn but i think it's a very defensible line he says it's not and that's that's what i want to make very clear the court this morning is this is not a case where the judge decided none of this is going to come in and some of it snuck in anyway this is a case where the judge deliberately allowed all of it to come in except for except for the very small issue of lions being able to to testify that it was an on reasonable  or excessive use of force and that's if you look at page sixty three it isn't until lyon says they hit put on the handcuffs as tight as they could possibly get and that's where the judge threw the law and so i think it's very important to that one final  mean this is a witness who would he asked the witness if you look he says he says it's not in there and then the witness argues with him the witness says he says he says the use of force the level of force is not relevant the witness comes back and says yes it is and the judge has a no it's not you know he asked it and so and the witness keeps looking at you read the transcript i sound like the witness is running the proceedings not not his lawyer  blair they don't have any cases for the idea that conduct that was that was not an excessive use of force can somehow become an excessive use of force and they could it was that is not would not be excessive force could somehow be used or that conduct that had that has already been determined to have a legitimate penalisable purpose can somehow be used to meet a first case be thrown into the mix for first many retaliation claim i think it is very troubling i think this goes to question you that you asked earlier and i think it is very troubling i do think it's a very difficult line to draw how do you allow conduct that has legitimate pain a logical purpose like how do you do you allow conduct of somebody being locked in a room for instance which happens all the time in prisons which for us would be an adverse action would chill a person of ordinary firmness for us but imagine a situation where a court would term and that particular action was part of people logical purpose and that there could still be first amendment protected right playing i think that's a very good we talked about this in length in our office your honor i think that's a very troubling you know basically you could say well you can put cuffs on people to move them obviously supported by a latina appeals but if you do it in the wrong context is somehow becomes part of the mix and the jury can take that into account for a for a retaliation claim i think that's a very troubling concept again i would reiterate your honor that you don't have to think you know whatever line the judge threw in this case does not have to be your line it just needs to be a line it's not an abuse of destruction it's not a clear air that's the standard here i think it's very important because of the standard in this case i do want to make sure that i address any other issues if if there's any of the other you know the tenant house testimony the instructions and i guess the one last thing i'd say about instruction twenty four and i think they make a big deal out of the lines makes me do all the clearly adverse statement if you guys recall from the nothing i don't think in this case turns a difference between that verse and clearly a verse they use clearly like it somehow modifies adverse to make it like a more intense type of adversity but that's not what clearly means i've probably said clearly two or three times in this argument and when i say clearly i mean obvious that's what clearly means and i don't think if you accept lyons a version of what happened here you know he told got to tell the jury all these bad things happened to him he got yelled at to get cussed out get the jury did not walk away thinking well i but as far as like what actually happened the whole story is consistent with the motion in limine a that the judge issued absolutely he did he was able to get everything in and in fact i don't see anything in reply brief as far as actions that were taken that he somehow didn't get in there what occurred to him than he did if you if you look back at mr lyons complaint and mr excerpts of mr lyons deposition testimony that are attached to the defendant's motion for summary judgment which are both part of the excerpts of record and i apologize i don't have the page numbers there when mr lyons was lying on the ground with his hands cuffed behind his back he describes how the officers picked him up by his wrists exerting pressure on the shoulder joints and what would have been a very severe and very painful that's correct ok and it's really not about what what came in and what the jury heard and what didn't it it's about the statements of the judge you know in open court to the jury to the parties that what you're hearing is not relevant to this retaliation claim when in fact it was there there was there was a lot of discussion of the court's motion in limine e which is an e r three sixty three now if you look at that motion in limine ie what you see what the what the court really had decided to do was permit testimony and evidence regarding plant just removed from his cell and you know if plaintiffs chooses to testify and provides testimony as to the rough nature of that conduct you know you did the defendants could object and seek this this was not a case where and the record we have this is not a case where the judge did that four zero one four zero three balancing and he  said even though there's the threat of prejudice here i'm still going to let mr lyons you know talk about this conduct that's that's not what happened on the record if you look at the trial transcripts the judge said this was not an example of the judge bending over backwards and accommodating this reliance he he you know he states in open court to the jury and to the parties