the next case we're going to hear is cooper vs pennsylvania department of corrections number sixteen dash nineteen fifty eight to resolve this case this court need only apply to resent presidential opinions by this court those two cases are always new stevie fisher and watson bureaus and we are here today excuse me we are here today because mr cooper pursuant to his job duties was ordered by a correctional officer to assist a blind inmate draft a grievance i think we need to send this back to the district court to have a chance to consider wisniewski light of the as to whether his job responsibilities included drafting grievances for inmates in fact we're here today because while mr cooper was acting pursuant to his job duties for because he was for bad things happened to him first the first misconduct was falsely issued against him second he was denied law library time third kid the second false misconduct was issued against him and on the same day that defendant sherman was referring to him as johnny cochran to other inmates and telling them that mr cooper would go to the superintendent with anything that happened in the prison and fourth because the defendants failed to observe prison procedures and resolving mr cooper's first misconduct the first three of those events relate to mr cooper's first retaliation claim those who are the event relates to mr cooper's second retaliation claim which  also been referred to as a due process violation turning to his new scheme that case is directly on point and it resolves the issue of whether mr cooper was engaged in constitutionally protected contact when he was assisting a blind inmate who a correctional officer told him to assessed and preparing agreements about your characterizations the retaliations you're breaking them into pieces is that is that how you're viewing them as different counts like the first misconduct of retaliation and then you got the second is conduct but you didn't call that retaliation you said before was i would see that there inch adverse action so the different adverse actions that belonged to the two different consider that because it didn't find any protective conduct correct so in question i had is yeah the one should we consider that issue on our own should we send that back so really the due process claim is actually best understood as another first amendment retaliation claim and this because that's how the claim was recherche tries to she did not dismiss his due process claim as defendants requested but what she did say within the retaliation portion of that motion to dismiss was that he had a sufficient claim under smith the men singer and then she characterize that as a due process claim but looking at smith the mensing are although it says that you have a due process right it actually says in that case that the plaintiff did not satisfactorily establish that defined claim because he couldn't tether it to a violation of a different constitutional right your position is he does on this record correct but in any tethered right is this right to not be retaliated against for representing a fellow inmates alongside with your job  s and correct as well as in connection with the due process claim his complaints about defendant granlund so defendant grammont had a dual motive to retaliate against mr cooper isn't that are we characterization of your brief because your claims involving granlund really had to separate retaliation claim against iran granlund unless you're saying it's not and i'm saying that i guess these two claims are characterized more to separated more by what the adverse actions are rather than what the constitutionally protected conduct was and in the s other complaints that cooper have been making about him generally what in the record would demonstrate a causal link between his complaints about grand and general fashion so the adverse actions you've just identified where we are we where could a reasonable juror infer from the record before us that there is some kind of link between the two shonar so the record does not specifically state what dates mr cooper made those complaints however there is information in the record that mr gutknecht defendant gremlin was only appointed in two thousand and one he was a recent appointment to the prison it also states in mr cooper's at the day that he made numerous complaints so i think on this record a jury could reasonably conclude that those complaints were made with a proximate enough time appointed this goes i do think there's sufficient evidence here for a jury to reach that conclusion based on that on that two thousand and eleven appointment of defendant or let me ask you about cooper's complaints the grievances just have to put the court put the defendant on notice that the that excuse if they have to cut the prison i notice that the inmate has a problem yeah but this is the the problems that cooper virtue of that i still think it does your honor especially because he's the description i think it does now i do think it has i'm sorry you think it does i do think it does i think be it because he was saying these things especially to the extent he was saying these things so to turn to the similarities between this case and was new stevie fisher was new c is good at the facts of this case could hardly be more similar unless they were actually identical it was new skis case he was a legal law library and a law library reference and and he had been assigned a mentally infirm inmate to his caseload to help him a with legal matters and the end they'd wanted to green yard policy so as a result new ski got tracked grievances for the yard policy and those were discovered in his room and then he was charged with unauthorized group activity and a slew of other things related to that we agree with with you that there's an issue of fact concerning  this these points is sufficient for mr cooper's summary judgment on the refrain is if the record is sufficient to reverse the summary judgment order and remand proceedings to try and the postponement may not be considered and we only say we agree with you on that was newsy point not the grand one point about the general complaints that judge fisher was asking about you said that the record is still the record if we can make that determination are you going to persist in the appeal of that order no i think to the extent that you conclude that mr cooper has made viable claims against each of the defendants if you conclude that their complaints against graham and were not as an additional reason to retaliate against him you don't need to resolve that is the case that we don't agree with you that there is duties a block representative who are identical to his new scheme if we do agree with you that he should have been given more time and  motion to compel should be granted doesn't that put you back in a prison were situation it would put us back before the court where he could actually presumably get responses to and rather tories and collect the evidence that he wished to originally collect to support his position about what his duties were as black representative so to the extent that the court does not agree that was a nice two ways to get you back to where you want to be correction i thought that was the purpose for making both as to the extent that the court good morning your honors and may please a court my name is joseph will genetic i'm an attorney for the commonwealth of pennsylvania and the department of corrections i represent the heavies in this matter and we respectfully request that this court affirm all three appealed orders here you know i think the difference between those definitions is that the legal reference that was a new scheme the duty that he was performing is predominantly legal in nature and that his job is soley to help inmates with legal matters and grievances as well the black representative has a border wain job duties the job of the opponent was performing it is not necessarily legal in nature or even quads i legal and nature  he is sort of a liaison between the inmates housed in a particular housing unit in the unit management team of that unit so his job may be on certain days to help inmates trap grievances his job may be to meet with the unit management team on a different day to express concern that some of the inmates on that housing block have about how the meals are being delivered or something of that nature so with a broader job it sounds to me like the distinction is that in was  was the attorney in this case suzy yunior that is a good way to put your our but i don't necessarily think the court needs to view the application of was new in that way you know it's clear that the court was interested in how was new ski applies to this case because while this case was pending the decision it was new somewhat changed the landscape and how these cases are determined but when you look at  was new ski and this appellate you do see some differences there so not only is one a legal or insane and one is a block representative but probably more important than that part of the reason that this court decided was new city that the way it did and extended constitutional protections to the job that he was doing was based upon the type of misconduct that was new ski received so the misconduct that he received charged him with various things that you would expect him to be doing as a legal  state and it made it very easy for the court to determine that there could be some sort of retaliatory motive there so he was charged with as opposing counsel said possessing another inmate's legal work which is contraband in the institution and engaging in an authorized group activity which again are things you would expect him to be doing as a legal reference aid but in our case as a block representative of what the appellant was specifically charged with in both of the grievances temper six agreements and a september seventh grade once were not things related to his job was so they didn't target his job duties when they issued him the misconduct the only reason he was issued a misconduct on both of those days was his refusal to obey direct orders to return to his cell as all the other inmates had been ordered to do he refused it multiple times and actually if you look at the first misconduct that was issued the september sixth misconduct they make a notation in there that cooper had been blocked carded on aug thirteenth twice and today for the same offense a block of harding is a warning to and so it indicates that he had specifically been warned about this type of behavior or if news got to the same defense component i think this goes to the causation component there are i don't think we need to get to watson in the same defense either as i don't think we need to apply was new skin the way this court decided it i think there is a very simple causation argument to be made here for why there were missed comics that he received what retaliatory so if the court didn't agree with me and determine that the appellant is very much like was news q despite the fact that there are differences there but i think you can move past that constitutionally protected activity component go right to the causation component and where you look at what was new so he was charged with and you can easily find causation there based on them targeting his job duties in the misconduct  is the misconduct for not returning to his salary leaving the area as required and then the very next day he gets a misconduct but mr diaz cruz who also didn't move doesn't receive any penalty isn't this really a question for the jury to figure out whether there was a causal link or whether or not it was just he was just a receipt of this in terms of not paying attention to directions to leave the area i think you have a correct there with regard to the d a has cruise component of this s cruise as a blind inmate it does not surprise me that the officers on that unit do not expect him to return to his cell as quickly as they would expect mr cooper to return to his cell in our institutions of that are either hard of hearing or impaired by sight who have a helper that will come and get them and return them to because that might be incredibly reasonable and warranted under whatever the circumstances are but aren't that i think that issues that a jury should consider that i mean whether there is a caus connection or whether there's an explanation for why the institution took a certain penalty against one but not the other i don't think so i don't think mr diaz cruise not being issuing a misconduct weighs on  cooper's misconduct at all and i think the temporal proximity you might be seeing here is nothing more than a coincidence i think when you look at that causation component the tempore proximity is that he refused to return to his cell on this date and then on the next day as well and it is something that he had done previously and at some point the officers cannot continue to issue him warnings they have to issue misconduct for that type of behavior we could talk about the materials  defendants refute cooper's description of what didn't happen and what he says in his affidavit is i was directed to sign the penalty page or whatever then the proper phrases to call it and i never got a chance mr cooper appeals his misconduct and then in the way that he alleges a violation of his due process rights and his complaint and moving through the litigation he is conflating the informal resolution process with the formal permits is for the inmate who is charged with misconduct and has elected to go through the informal resolution process to meet with the unit management team oftentimes either the ship commander or the unit manager to discuss the circumstances of the misconduct that you receive and an appropriate resolution to that and then the form that you see in the record is that process occurring the representative from the unit management team signing it and then also the inmate signing it and them agreeing upon the appropriate sanction of fourteen days of cell restriction which is not a sanction of disciplinary custody it doesn't force him to a restricted housing unit it simply restricts his privileges on the unit for a period of two weeks had the appellant decided that he did not want to participate in the u s and the informal resolution process which seems likely based on his appeals were he complains about not receiving findings of fact and not being able to call witnesses i'm not even focusing on that because i understand your distinction between what happened and what she wished happened  wanted to happen yes i'm focused on what happened at that informal resolution process because there's nothing in the record in front of us that i saw and i'm happy to be directed to it where the defendants provide an account of what happened during that process we have a piece of paper that says what the resolution was but it but not the thinking use the word an opportunity to discuss a discussion usually as to ways yes his account of it which is the only account we have of what happened is he was told what to do sign this piece of paper you're lucky this is all that you're getting  stop so aren't we in a position where we don't have anything other than his account that the requirements of the informal process in eighty eighty eighty and one were not met with what are we to do with i don't think this court has to do anything with that i other participants in the discussion i don't have an account of what happened from the other participants and the discussion i have the report indicating that the agreement was a fourteen day period of sellers friction i guess my response would be that what he's claiming here is retaliation in the issuance of his misconduct which got him to that informal resolution meaning if what he was claiming was that beyond the due process of violation he has some sort of super appeal ability from the misconduct procedure to this court he's mistaken there so this court doesn't have the authority to reach in and correct and intra institutional misconduct proceed and you can certainly find that there were talents or motives you can find the due process wasn't met but if what you're asking you to respond to was whether or not the policy was followed such that it was a full and fair hearing in the way that a criminal hearing might be that that's not what i understand what you're saying it's not meant to be that ok i totally at that my only question was is there anything the record that provides the other account that that that inform the process happened in the weighed eighty eight zero one expected to happen and all we have is his account perhaps responses to in raw materials were given maybe that would have had something in i do want to ask you about that short and light of the nature of the responses to nevada tours which really didn't provide hardly anything well you know should we have should we revisit that but i don't see what acted appropriately i don't think so your honor i think there are two things to look at here one whether or not he filed any somewhat or even on reasonably timely motion to compel discovery and whether or not those responses were appropriate when they were issued my position obviously is that the responses were appropriate when they were issued if you look at what the in arriva tori's seek all one hundred two of them they do a regular things they ask for the defendant apple use to identify themselves but they don't indicate in any way what that identification is based on the ask for the defendant appleby's to identify other individuals but again don't indicate what that is to be based on they ask for the defendants to opine about certain documentation that's not attached to the iraq tori's and then they seek legal conclusions as to some of the ultimate issues in the case i think my responses to those and the way than which i provided very specific  put the appellant on notice as to a way that he could have resubmitted them to avoid some of the issues that i had when i originally received that now i issued my responses to those on may nineteenth and twent such a way i clicked yes they also kind of merged admissions in iraq atory as a request for documents which can produce a case is unusual but it did in such a way that made it very difficult to respond to so i think that would our position as jersey yes he didn't have his records he was waiting for the court to rule on his motion to amend the judgment why wasn't there requests for additional time before considering summary judgment why wasn't that abuse of discretion and i think with the district court did here and in a very well reasoned opinion was take a look at all of the types of evidence under fifty sixty of the appellant was looking for and in turn indicate why either he already had access to those things and had proven it by submitting portions of those previously or simply something that he didn't need so those were meeting minutes to assert that he was a block representative that was not in dispute and he had made that assertion it was not contradicted they were affidavits from other inmates to i suppose a pine about the tension on the unit or a kind of the interaction between officers he had myself that made that indication there were sober structural policies that he asked for but he had submitted portions of those policies previously indicating to the court that he either possessed them a could get a hold of them and then also he mentioned the story responses which the court dealt with and it's up and it's order denying his motion to compel discovery so i think in every way under fifty sixty that he indicated there may be more things he needed i see my time off i can just finish please do that in every way that he indicated there may have been more things he needed to respond to summary judgment i think the district court did a very efficient job of addressing each one of those things and its opinion on that or thank you orders he has at all times contended that he was not disobeying orders when any of this happened on whether mr diaz cruz would have been given one leniency because he was blind there's certainly an issue of fact about th any other evidence that might buttress the facts that are now trying to create issues with an appeal in fact it's really just mr cooper's version of events that we have in front of  the other thing we're having was a new scheme a police have argued that was news he can apply unless the correctional officer specifically indicates in the misconduct that they are issuing misconduct because they're inmate was engaging in constitutionally protected conduct that he simply cannot be the case or else we would never have retaliation based on misconduct and as courts have routinely recognized in the circuit which allegation claims are almost new ski that was new skis misconduct was for performing legal duties which he was assigned and cooper's misconduct was because he didn't return to the cell sure what exactly happened here with a shift change and shift change to other could have been some other disturbance you know that those that don't the correctional officers have the right to in maintaining control of the prison to say look go back to yourself honor i do think that prison officer which is the correctional officers have the right to say go back to your cell but what they don't have the right to do what mr cooper still does not maintain that he was ever ordered to go back to sell at a time he's affidavit says because of the way he looked at me i thought i might i might consider all of this up at a later time and so he just peaceably left after after mr am after defendant sherman said so you think you know how to write people up that's mr cooper's version of events so under that even under  appellant's about what happened that day in fact d the informal resolution action is completely blank in the section that says a reason so where you might that indicates that he thought he was entitled to a written response what that actually says is made easy three to zero eight was not allowed to put up a defense or confirm or deny the allegations against him charges against him by c o sherman it doesn't say anything about that being in writing that there's at least a question of fact over whether he was allowed to say anything or write anything even if the thing we had was this appellate form but we also have his affidavit saying he wasn't allowed to say anything and that's