thank you and may it please the court my name is sarah here us and i represent appellant but the first amendment protects prisoner speech in less it is inconsistent with legitimate you know logical objectives and the this the speech in question in this case griffin's letter could not be more innocuous the letter stated griffin's intention to abide by the rules of the prison it stated fear the prison officials will retaliate against him and other members of the forum if they simply raise concerns about the lack of air conditioning in the prison and the quality of the prisons food this letter falls in the heartland of the speech that the first amendment protects prison has indicated some legitimate pino logical objective that justify suppressing a speech so impel in all the other cases you have a prisoner who's doing things like writing letters were prisoner wants to send mail to announce an official  to meet that standard is also very clear from what the supreme court has said there has to be some sort of cause or connection between the restriction question and the illegitimate objective you have to establish that for all internal prison communications you mean you mean that the prison would have to articulate a reason for yes i think that's where you can even think about the shy case for instance the facts of shah are that that is a case involving in me to me communication that's the two thousand supreme court case with the if the first inmate is the legal representative o have a interest in furthering the policy of the prison i mean are we going to get everything in person i think i see two things first of all this is actually a letter to an outside person you know it's a letter to the regional ministry person who is outside the prison well you still within the prison system within the prison system is very different though from an inmate inmate communication within the prison and i think the supreme court in cases like well you still within the prison system that's all if this were a letter to a true outside person that would be different but you're case are you have an inmate who says i would like to get more money from a count appeal or the prison if the prison one of the prison officials says no i'm not going to give that money and the prisoner then says i'm going to go over your head and complain to someone else in the prison and i have a lot of simply the prison these just just articulate some sort of causal connection and i think also the any concerns that you have about a lot of prison and a geisha are really obviated by the fact that the prison litigation reform act already screens out a lot of what you might consider grievances and we think there's also a bigger picture concern at stake here which is this court has heard time and again that there is no justification for restricting someone's constitutional rights and i think that one person i mean their rights are taken away because would support that we'd be there but again we're talking about a case in which the prison has done nothing more than same in a letter we think that you have reason grievance you're being kicked out of the words were because this purportedly demeans the staff and the letter itself is some sort let's move on does he have a constitutional right to be warnings warden's for him no but that's not actually an element that he would need in order to show retaliation again even even if you don't have a constitutional right i think that you're being deprived of you do have a constitutional right to speech and that's clear from pieces like news and nor is it like the great us what's the best case that shows this would deter a reasonable person or you know if you kick them out that like a warden's form i guess i'm struggling with that because the word as far as it's similar in the sense that it's an appointed position resenting people are you you're raising grievances that are for the prison right population so i think if you look at p t for one hundred fifty was convicted however where his family actually if the record silence i guess that would seem we can't do anything yeah i mean you haven't really sustain your burden of showing that this is adverse to his family if you don't even know where his family is from mr griffin said that his family was unable to visit him since he was transferred why why would why would why would that be you know adrian ok he's convicted eastern district of the eastern district i mean i would think would make it easier for his family  not that far i think it would be very sparse in the southern part of the state would be different if he's moved up to the upper peninsula of michigan but he really doesn't move that far away i think it would certainly be very far for someone who doesn't own a car for instance and that's quite a long distance and  the benefits of each year mr griffin mentions both in his complaint in his objections that he had he had a higher paying job at the first prison and the second one he was unable to one for six months in that when he did obtain it he was only able to it was only for three or four days just a motion to dismiss case and try to it it's a combined motion to dismiss and motion for summary judgment that combination is really important because it's summary judgment you're not allowed to rely on what's in your complaint you have to put judgment which you say in the complaint matters not what matters is whether you can support the allegations in the complaint with evidence and if you don't that's a problem that's certainly true in this summary judgment standard i mean again the other fallback in this situation though is that we have a transfer combined with removal from the warden's form so even if you were inclined to dismiss the idea that work that they were forseeable consequences associated with transfer i think the combination of these two adverse actions would suffice and i would also mention that i think it mean i think fundamentally the testimony point of it right there was also this testimony in the investigation that's the second thing yes yes just real quickly what exactly is going on and i mean you have these two inmates supplying very good evidence but isn't there evidence go to the form as opposed to the testimony i don't remember they're saying that the retaliation related to the testimony went to understand the question yes   there any other questions on this base ok you get your rebuttal here from the state thank you well we still have the other defendants who want to get you know i should rather get a little bit of argument here so they can as well ok so that the the alleged false misconduct ticket was filed by the murderer yes that's correct how do you bring in the other two defendants then i think the fact that two prisoners in uncontested testimony overheard those three officers the day before the tickets saying that they were going to get together and file false misconduct to get against griffin certainly brings them in this court's precedents for instance king to see that if you are someone who participates in acts th please the court kevin haim on behalf of the department correction defendants before start i just want to emphasize i'm documentary nine and this was only a motion for summary judgment because that really guides the whole case as far as the standard it was only a summary judgment motion so your honor as stated in the standard overview section of our brief this court may affirm for any reason supported by the record even though it's to novo review their self about the claims she talked about last the investigation testimony and investigation and the fact that now they have they do have these two inmates that say i overheard them you know saying we're going we're going to get this guy essentially  id one forty six and one forty seven there's two affidavits the only the only inference you really could get is that those two inmates are talking about the worms form first for whatever reason the defendants were upset about what the plaintiff was doing at the worms form and they wanted to do something to there's nothing whatsoever in those affidavits that these two inmates overheard anything about been smooth investigation and the facts underlying the investigation there is just simply not one iota of evidence in support of the plaintiff's claim and i'm sorry i'm using plaintive just to avoid confusion on the last name but  that they want to get mr griffin i mean isn't it reasonable to infer that it may have something to do with the best to get that wanted to get them i mean they don't have to specifically spell it out to the net now because really if you reread those two affidavits from the prisoners there they're implying is that what they heard it was was a bout what they heard was about warms for the officers over him the officers trying to get this guy kicked out of the warnes form there's nothing at all and those affidavit saying they overheard that the prisoners overheard any communications from the officers that they wanted to somehow get on board this man's investigation there's just no evidence of that so it's really not conclusive that they want to get him because investigation but is there enough to raise an issue of fact or more discovery i mean you know right now well it is summary judgment though isn't right and their concerns are discovery or about at the meeting there was her perception that that the plaintiff puts trying to create some unrest and so i think there's been a false presumption that the warren and acted soley in only on that letter and the evidence supplied in the summer judgment motions that there may have been more to this story as far as what was going on what wasn't there may have been may have been glue that was in fact but you you know i think the difficulty in the prison in the prison context you're not going to get the smoking gun of the prisoner standing up saying i hereby declare i'm going to start a riot today you know it's that kind of goes against you the correction officers may not specifically say you know smoking gun we're going to get them that are doing those are your do you have to actually correct what they say  up and her perception was that he was trying to create unrest in my honest answer to your question is that the war and i don't think articulated it as precisely as perhaps a lawyer or or a judge could but these are these are very quick decisions and the previous thing was from she was just having a bad day she you know she could of you know and she she interpreted what he how he was acting in the meeting upset we don't know exactly exactly and on summary judgment was up to the plaintiff to prove the three elements of that claim so going let's just go through that first claim  also i just want to clarify this whole issue of qualified immunity i know i don't want to throw too much of a wrench into the works but the district court judges are busy he he didn't rule on every single grounds that could have disposed of the case we raised qualifying munity the district court judge denied that ruling qualified immunity because he could rule on the merits that doesn't go to say that that doesn't provide to two issues both the warrants form and the issue of transfer both of those have some gray areas and how about regarding to the correction officers for allegedly filing filing false on qualified immunity it's not clearly established you can't i mean if that were the facts if they could actually prove that is your position it's not clearly established that that would be a violation of his const to that right that particular one i think qualified immunity is least applicable to ok i think the qualified immunity or really goes to the issues with the warren's form and that and the transfers go that's advice that it doesn't it doesn't get you all the way there that no no so so really the only the only prove all three elements of their television since he is pro se should we give him a little bit of benefit of the doubt here that he's not represented by counsel we don't have some authority that i know well you know haynes versus courier those someone'll supreme lawyer supported case should give more evidence then a pro se case i know of i know of no decision that says you should give them a break for that so so he's on the same rules on summary judgment we establish one that really is the only proof of of the causation is that at most it was towards the the want to get him kicked out of the warrants for they're just simply no evidence in the record of all scoring take it now well there's there's a couple things going to number one even if even if we conclude that the transfers cause are related to some thien that something is a complaint regarding the warns form which is not protected conduct so i think to this question is going to where there was an adverse action to transfer to another prison question oh ok and then i'm sorry i i think i misunderstood the question because you said causation as far as the adverse action aspect the inference from cigarettes versus barlow is that in general we start with the presumption that a lateral transfer is not an adverse action and then you look beyond that initial inference and see if there's other issues that may elevate this from just a trance usually the case where prisoners are transferred around all kinds of reasons but reasons are given  to make sure that there is no inference and here there is no reason other than that i can see there is no reason other than h out about what happened before three days later she dressed first right and then that goes to the can this look like it's clear well but then that goes to the qualified immunity issue is of is it clearly unlawful for prison and ministry or to transfer someone because of their participation warns or and that that's that's one issues here today and that there is no clearly established you agree with the standard about actually he was involved right with the prisoner getting the funds to pay his lawyers say he was intimately aware of the repercussions of if he were to lose his job and that was he was going to be peons lawyer there's not there's not even close to those type judgment here and we're taking all inferences in griffin's favor and i think on that basis you see a number of pieces of evidence in the record that suggest that there is a causal connection between griffin's participation in the investigation and the ultimate retaliatory trickett tickets we've gone through the prisoner affidavits and i think there was at least raise some sort of inference in griffin's favor and some rejection but even if you're skeptical of those there are other things they think are important first of all the altercation with kind in allegedly saying that the investigation would change nothing so there's certainly facts on the record to suggest that kind of was very aware of this investigation and kind of is then conspiring with the other two officers to file fast misconduct tickets against gri that on summary judgment taking on inferences in griffin speaker should at least create a factual dispute that would preclude the state from getting summary judgment and for the same reasons because this is a dispute about causation the state would not be able to claim qualified immunity like to now turn to the second issue which is going back to the first claim with respect to practice with respect to griffin's letter and the chain of events that led to his transfer to another prison and his removal from the warden's for justify should satisfy the standard of adverse action under this court's precedents you can look at bell or thaddeus x those cases they in fact most cases should be able to establish adverse action these it's going to be the rare case actually that will be screened towards three oh so good job thanks to both of you for your briefs and argument we appreciate it and the case will be submitted to a curtain call the next case