case one seven dash one nine nine three and one seven dash two zero three nine randy berkshire v deborah dog at all or arguments as fifty minutes for plaintiff fifteen minutes to be shared by defendants mr robert mr adams robert to be here for morning your honour's may it please the court i'm adam to bear and i'm appearing on behalf of all the appellant's in this matter with the exception of dr posey those who counsel for dr posey else will be presenting arguments for five minutes i'll be presenting arguments for eight minutes and then i'll be taking t titled to qualified immunity now as to the violations problem of the qualified immunity analysis dr dol search that she is entitled to qualified immunity because mr berkshire did not engage in protected conduct specifically his conduct in the form of submission of the agenda to the warden's forum was not conduct protected under the first are under the petition clause of the first amendment as well as his assistance that he provided to the two other prisoners that also wasn't could conduct protected under the first amendment now for two reasons dr dollars and title to qualified immunity under the violations problem of the qualified immunity analysis first when mr burch i or presented the agenda to the residential treatment program officials he included within that agenda an individual complaint specifically he asked that a policy be set so sergeant harry would allow him to conduct rounds on a wing and specifically under the warden's foreign policy directive it provides housing unit representatives shall not use their but he was only one he was one of the two housing unit representatives for the warrants for him so it did not present prevent the other prisoners from being able to gain access to their housing unit representatives and that policy directive in particular the portion of the warden's foreign policy directive has already been found to be illegitimate by a panel in an unpublished decision of this court specifically in griffin vs burgess this court cited to the jones vs north carolina prisoner labor's union which said that if prison graduation takes away one way in which prisoners can advance their right to petition the government for redress of their grievances that's fine so long as there are other avenues available and specifically the other avenue available in this case is the grievance procedure and additionally this court just last year and maybe vs thiele and acknowledge that prisoners are free to give verbal complaints to corrections officers when they see them in the child hall or in the hall or in their addresses the fact that they take it away so does that make it in illegitimate agenda just because the practice is constitutional specifically i'd issue in this case your honor is the fatty is  x opinion in which it says that when you act in a way that is contrary to a legitimate policy director or a legitimate prison regulation you are not engaged in protected conduct so no the issues are slightly different but in this particular instance by including an individual complaint he violated a legitimate prison regulation however i do want to say that even if this court finds that it was not an individual complaint and if it was a group complaint not in violation of the warden's foreign policy directive it's still nevertheless not kind of protected under the first amendment and the reason is that prisoners do not have an independent right under the petition clause of the first amendment to seek redress of other prisoners grievances absent a showing of course that the other prisoners require their help to do so and in this case the district court specifically found that there does not seem to be any evidence suggesting as in king vs a miria that his assistance was required that his berkshire's assistance was required before prisoners were permitted to access the courts and again i am not i'm not taking i'm not trying to argue the facts mr birchers own affidavit said that only in his opinion was his assistants necessary and he also acknowledged as i mentioned earlier that there were two housing unit representatives a minority housing unit representative and a non minority housing unit representative so he hasn't presented evidence below that his assistance was necessary for these two reasons neither was his assistance to the two prison news that he assisted in filing grievances nor was his submission of the agenda to the warden's form conduct protected under the petition clause of the first amendment and that's because simply put if the other prisoners didn't require his assistance in order to bring those grievances they had the ability to submit their grievances through the grievance system or essentially as this court said and maybe approach any of the corrections officers when they saw them in the child hall or the housing units mechanism a mechanism provided by the prison for prisoners to get together and present an agenda to the warden and then have a meeting with the warden yes and so you're saying then that the prison authorizes this procedure but that it's perfectly fine for the prison and to retaliate against a prisoner who brings who is attempting to comply with what is the officially approved method and his fatal flaw is that he added one issue on the many issues that related to his individual my right no i honor and let me explain why first of all i don't think that this court needs to get to the individual issue it's my position that it was in violation of the policy directive but even if it was a group concerned the wardens forum program is designed so that prisoners have the ability to present group grievances to the actual administration and the service and he was trying to do that and you're saying it's not protected and you're perfectly fine to retaliate against him for trying to do that no your honor it's not perfectly fine for anyone to try to retaliate against anyone for presenting these grievances however under the qualified immunity analysis it has to be unlawful it wasn't clearly established that this protected conduct or that this conduct in question was unlawful but now you're getting to the clearly established and i was asking about the underlying activity i mean it seems to me that if we think it's not protected activity that we are then thing it's perfectly fine for the president to retaliate against him it might be bad for the prison officials to retaliate against any prisoners but in this particular instance it doesn't rise to the constitutional dimension and that specifically is because what he was doing was not conduct under that protected conduct under the petition clause of the first amendment and i'd just like to point out that i'm not asking this court to change the law or to otherwise restrict or take away any first amendment rights that the prisoners have i'm only asking that this court protect the distinction between the warden's form program and the grievance program the program is designed for group created and says and it is a way for the prisoners to be able to speak directly to the warden and or their designees and it serves a great purpose for the m d o see the michigan department of corrections as well as the prisoners who get to feel like they're part of a and allow this court to consider whether that it was waived and then to consider the qualified immunity argument in the interest of justice and that's what the appellant asked this court to do as it court what the facts they would decide the first prong of qualified immunity if they got there in this case for dr posey goes that is whether or not a constitutional right with violated it is the same set of facts that would support a qualified few verses delia indicated that there was no distinction drawn in common law for qualified immunity for an attorney was full time or part time found that the contracted tourney with the state was subject to qualified immunity even though he was an outside contractor appellant submits the dr posey should be the same and even more so in this case because of the full time nature with which he works which is the controlling on the state which controlled this issue for judge turn know in the district court in the case that with their analysis of the history the firm roots of history they decided that pit panel inside that there was not a history of a forty doctors immunity at common law and therefore they were not going to create one however after several pages of going through the history they had three paragraphs regarding policy is the policy prong which which go through it or to get to that point but if you look at the the policy at part of this what mccollum did briefly was say that while the market pressures make it different for the private corporations in richardson you had a private prison run by a private corporation with private guards and private employees that's not what we have the with the michigan department of corrections when you have a psychiatrist working for a contractor he's working right next to a state employee treating sometimes the same patients i have another case where i have there's a state psychiatrist who treats the person when he's in general population when he goes into it you care it's a contracted psychiatrist they treat him with the same medications the same diagnosis exactly the same treatment plans if they were both sued the contractor would be subject to liability the state employee would not be this is different as the time is go good morning your honour's and me please the court conor fitzpatrick on behalf of the appellee randy berkshire the bulk of the arguments in appellants briefs are direct and indirect attacks on the district court's rulings as to whether a genuine issue of material fact exists for trial this court lacks interlocutory jurisdiction to hear these arguments under the supreme court's decision and johnson versus jones the sole issue that is properly before the court and that has not otherwise been waived is whether mr berkshire's peaceful letter to defendant all constituted clearly established protected activity under the first amendment it did the first amendment protects the right of a citizen to write a peaceful letter to a government official asking them to fix a problem whether it's a resident complaining about a broken streetlight a constituent wishing to express their views on proposed legislation or and made complaining that their conditions are inadequate the constitution protects peaceful outreach to the government by the citizens and here the magistrate judge and district court both correctly held that mr berkshire's peaceful letter constituted protective activity under the first amendment my colleague on the other side places a significant amount of focus on a prison policy that mr berkshire's supposedly violated when he submitted this letter i have three principal responses to this argument first judge moore as you pointed out the supposed individual concerned that was in the letter which was number five in the list was not really an individual concern at all the complaint was that mr berkshire was not being permitted to conduct the rounds in the a wing unit of the of the r t p portion of the facility that is not a complaint that is personal to mr berkshire that is a complaint that the individuals who resided in a wing were unable to meet with their elected housing unit representative so we'll get to the issue of the other housing unit representative in a second but speaking specifically to the issue of whether or not it was an individual complaint it simply wasn't the second response is that this argument that there was a policy violation was waived mr defendant all filed a motion to dismiss two motions for summary judgment a response to our motion for summary judgment and objection to the report on summary judgment and in answer an affirmative defenses and in none of those did defendant all ever raise a concern that mr berkshire's letter violated a prison policy when was this argument first raised it was first raised in their brief before this court your honor the first time this policy directive was mentioned as as a possibility that mr berkshire might have violated it was in defendant dolls opening brief in this court this case has been pending since two thousand and twelve defendant doll had six and a half years to argue that mr berkshire's letter or at least one sixth of it violated a prison policy it is too late to make that argument now years after the close of discovery and after we would have had the opportunity to explore what these supposed legitimate pea logical objectives are through the mechanisms of discovery the sixth circuit is too late to raise that argument and even if your honour's don't buy either of those arguments under this court published decision and maybe vs feel and the procedural posture of this case that it's a qualified immunity appeal means that mr berkshire gets all reasonable factual inferences when it comes to whether or not his conduct was protected so even if the court believes that it's a close call the tie goes to mr berkshire he is entitle to the favorable inference that this complaint that the prisoners on a wing were not being permitted to speak with with him as the housing unit representative that that was not an individual complaint so it wasn't an individual complaint any argument that there was a policy violation was waived and even if neither of those are the case the tie goes to mr berkshire under may been and under the qualified immunity procedural right yes your honor now mr berkshire's status as a housing unit representative likely helps his case for the reasons that judge moore you were getting to a little bit earlier that this was a program for submitting complaints that was set up by the prison and as this court held in wholesome or when it adopted the pearson decision it would be a perverse result for the prison to essentially set out the complaint box and invite complaints from prisoners about how the prison might be able to do better and then to give the prison a free pass to retaliate on the basis of complaints that are made through that forum but to directly answer your question judge white the answer is yes mr berkshire wrote a peaceful letter to his unit chief raising specific concerns about policies that were being violated by unit conditions such a letter is directly governed by this court's decision in full versus bates in  versus bates also involved a prisoner who decided to write a peaceful letter to prison officials raising concerns that prison conditions were essentially subpar and that they were inadequate and like here the prison officials argued that the letter was not protected by the first amendment and that even if the letter was protected it wasn't clearly established and back in one nine hundred eighty three this court rejected both of those arguments this court held that pelle made it clearly established that a peaceful letter to a government official asking them to fix a problem even when that letter is written by a prisoner and even when the recipient of that letter is a is a member of the present administration that that constitutes clearly established protected conduct of under the first amendment now my colleague on the other side spends a significant amount of time focusing on the fact that mr berkshire's submitted his letter as part of the warden's form program but the problem with that argument is it doesn't answer the it doesn't answer why even if mr berkshire submitted this letter as part of the warden's form a program how that could somehow make it inconsistent with legitimate pea logical objectives and that's why judge wright judge white returning to a question that's why it helps mr berkshire's case because it is because it is inconceivable that a letter submitted in accordance with a prison procedure submitted in a in accordance with a prison policy directive inviting such a letter it is inconceivable that a regular prisoner submitting a letter asking for conditions to be improved that the letter hypothetically the letter just for conditions that affected mr burke to be improved in other words it should have been a grievance hypothetically does that make a difference possibly your honor i think it would be a closer call but the reason i the reason i don't think it would be the reason i don't feel comfortable saying that it would not be protected by the first amendment is i still have a hard time seeing under pelle what the legitimate pea logical interest would be in being able to punish mr berkshire for such a letter i think there's a good chance that the prison would be intitled to throw the letter in the trash and ignore it but in terms of actually punishing mr berkshire and taking adverse action against him for maybe filing complaints towards the wrong  in the wrong complaint box if you will i'm not sure there's a legitimate pea logical objective in the firm of punishing a prisoner for that but here mr berkshire's submitted his letter as part of the warden's form program at the invitation of the prison now i'd like to address my colleague on the other side's arguments that because there was another housing write unit representative and because there was a grievance process available that means that mr berkshire's letter was not protected by the first amendment in my colleague's argument is that it is mixing apples and oranges it's mixing two very distinct and separate lines of first amendment law and imposing their requirements on one another so there is a first amendment right to access the courts that was most recently recognized in fattiest sex that through the grievance process there is a right under the first amendment for individuals to access the courts to vindicate whether it's their civil liberties their civil rights hey b s petitions and what have you that is an entirely separate inquiry from what pelle and wolf will addressed which is a traditional petition clause letter to the government asking for conditions to be improved to be sure both of them have their foundations in the petition clause but that does not mean that all of the requirements of thaddeus sex can be imposed on the housing unit representative and there's a good reason why thaddeus x speaks to the filing of official grievances which under the present litigation reform act or a prerequisite to filing a civil rights complaint in a district court it makes full sense to prohibit grievances from being filed on behalf of somebody else to the same extent it makes sense to prohibit a lawsuit from being filed on behalf of somebody else it's essentially a standing problem but with respect to a traditional letter to the government saying these conditions concern me i would like the government to consider fixing them my colleague can point to no authority suggesting that there is a requirement that such a letter only speak to individual concerns and that's especially true here where the housing unit represented a program expressly required only concerns about the prison community at large so they're trying to have it both ways they're trying to say mr berkshire did not have a right to raise concerns about himself to the warden's forum but to the extent he raised concerns about himself that means that his letter was not protected by the first amendment this type of shell game is what was expressly closed down by this court and holes were when it adopted pearson when it held that nothing in the first amendment suggests that the right to petition the government attaches only when the advocacy takes a specific form if my colleagues if my colleagues argument were correct that because the grievance process was still available mr berkshire's letter was not protected by the first amendment mabon would have come out the other way pearson would have come out the other way so too would bowlful because in all three of those scenarios a grievance process was still open or in the case of willful the possibility of filing a complaint in the district court was still open so it is simply not the law that because an avenue of complaint remains open that that means that the prison may legitimately curtail all other forms of x pression that is not the test under pell the test under pell is whether an exercise of first amendment liberties is inconsistent with their status of a prison or something like a march or a group protest or in durban vs birthplace one of the cases that my colleague discussed an instance where a letter essentially threatens a prison uprising so britain versus not hold that a letter was not protected by the first amendment it held that a letter which threatened the prison that it is not up to prison officials to decide what is best for the prisoners that there was a legitimate basis for prison officials to view that letter as a security threat nothing similar has been pointed to here and in fact the magistrate judge on pages fifty sixty two and fifty sixty three of her opinion expects pressley pointed to the fact that there has never been an argument by defendant all that mr berkshire's letter jeopardizes security that there has never been an argument by defendant dall that mr berkshire's letter violates prison policy the first time a suggestion of even a barebones policy violation came came to light was in the six circuit merits brief that was filed more than six years after this action began with respect to mr posey osis arguments the first issue your honor is that this is that qualified immunity was waived the objections to the district court did not even contain the words qualified immunity and i understand from my colleagues reply brief that his argument that because mccollum is binding that means that essentially it wouldn't have been any use to raise that this huge issue to the district court that might be fine that might be a fine explanation for why he didn't challenge mccullum in the district court but it still does not explain why there wasn't an argument raised that even if the facts are viewed in the in the light most favorable to mr berkshire why qualified immunity would still attach and that is where the argument was waived and moreover your honor we filed a motion to dismiss defend opposes appeal for precisely this reason and in response to that motion and this is in case number seventeen one thousand nine hundred three which is dr posey also a separate case  docket number eight page four in response to our motion to dismiss his appeal dr posey goes promised this court that he was not going to raise the issue of qualified immunity that he was going to rely on pendent jurisdiction and then of course in his barrett's brief it is all about why he's entitled to qualified immunity and and why this court should overturn mccollum and a non bank fashion i think there's even an argument there that he's judicially a stopped after defeating our motion  argument on  appeal so judge moore if i understand my colleagues argument correctly i believe it's that because much of the evidence involving defendant bouvier's and sir mo's claims is similar to the evidence that relates to mr posey osis claim essentially it can all be decided at the same time the problem with that is that as i mentioned earlier the court doesn't have jurisdiction to consider whether or not a genuine issue of material fact exists with respect to defendant bouvier and  sermon so you can't use pending jurisdiction on the basis of an issue that itself lacks a jurisdiction to be heard and i think the best way to show the true character defendant posy owes his argument is in his opening merits brief when the key affidavit that the district court relied on that of brant learning to find that mr posey was was not entitled to qualified immunity to defend defend opposes argument is that mr lang simply isn't right that his affidavit isn't true that is a factual argument for the district court it has no basis in a qualified immunity appeal thank you just have a couple of follow up points i want to focus first and counsels argument regarding paul vs bikini talks about that a prison a prisoner retains those first amendment rights that are not inconsistent with his status as a prisoner now the agenda itself may have been peaceful it was peaceful but it has to be consistent with his status as a prisoner and his status as a prisoner was that of a housing unit representative and the agenda has to be viewed in that light and simply put under no published case law in this circuit does a prisoner have the right to petition for the redress of grievances on behalf of other prisoners now additionally s the clearly established problem a useful case  they may have a right to do that under the free speech clause petitioner has brought this argument under the petition clause of the first amendment and in your hypothetical i am assuming that the prisoner you mentioned was not a housing unit representative gratuitously so und such and i just likely lastly like to point the court to the western district of michigan's opinion in miller vs burgess which is cited in our merits briefing and that case they distinguish king vs the miria with griffin  or with the miller vs burgess case and the court noted that a president does have the right to assist other prisoners with their grievances if the help is necessary but they don't have the right as a housing unit representative under the petition clause to do the same the latter as per the former is protected conduct helping other prisoners if necessary participation as a housing unit representative as in the warden's form is not and because that case was decided in two thousand and fourteen it cannot be the case that it was clearly established as such thank you your honor i'm out of time and i appreciate the opportunity having presented arguments in front of you i've looked at it that i'm cool with it my hand in the blockquote that he put it is brief is nowhere to be found on that page nowhere was the qualified immunity argument waive in fact on that same page it goes into a denial  somebody's judgment on the basis of a qualified immunity is a collateral order that it neatly under one so that's exactly why what was need argued on there was not being waived and lastly we're not but the appellate not asking for this court to make it a question of fact decision if they get to the point of the first prong qualified immunity they will see that if they look at dr clarke's testimony she testified that dr posey owes did nothing wrong you don't have to get to a state of mind if you didn't do it didn't act  do anything wrong thank you thank you all for your argument the case will be submitted with the curve the next case