handwritten notes on books that are not banned and that are available to every and how do we even know that i don't even i can't figure out from the record that now exists what exactly was  completely murky to me and it sounds like everybody has a different version of what they think we'll see just how can we even and judy keep this without sending it back for more  little red book except where at the summary judgment stage act and the summary judgment materials as distinct from my complaint i did not see a list from either side i mean one side saying these are not banned and they're fine and the other side says no no they're all gang related but we don't have the materials to look at and figure that out so that's very frustrating at least to per se litigants have been sent a notice that explains that they have to support affidavit i mean this may not be your problem so much as it is the opposing parties problem  defendants have provided the district court judge with the materials that can even be submitted under seal but district court cases that defendant cites and support including taylor watts and hawkins all involved the district court analyzing the materials at issue there and tailor the district court judge receive the materials under seal and then analyze them before coming to a conclusion in regards to turner and here we have books that were not banned we have notes on books like kafka's the trial chairman mao's little red book and howard zinn's a people's history of the united states it's undisputed that mr sawyer is a prison journalist with a spotless prison record and defended himself admits that sawyer is not gang related or affiliated in any way so on this record there is a genuine dispute especially when mr sawyer stated that h security he took notes that all materials that were not banned these not these materials were available to every and he read these materials while in prison and he's an award winning journalist journalists take notes on books that's what they do he's received many also has a rule fifty six d motion and that was that with are you claiming that the some legion meant grant should be reversed and the matter should go to trial or the summ judgment should be the first and the denial of the fifty sixty additional discovery should also be reversed and it should go back for round to a summary judgment consideration what is the direction that the you seek your honor either of those it's in says would be beneficial for mr sawyer here we simply believe the district court and not reviewing the notes whatsoever ignored the duty that was required of it under turner and because courts under turner are required to determine whether the present officials who populate use their role and instead we believe the district court your rubber stamp the seizure by not even reviewing the materials whatsoever so at the very least we believe mr sawyer is entitled to trial to determine whether is no it's actually implicated present security and to determine yeah i'm i'm going to back to judge graber his initial question we have a declaration from from mr sawyer in which he makes very broad allegation they're not nearly as pacific as the matters in his complaint and that then then we have got a nose declaration which gives us a little bit more information but says well there was there was stuff here including stuff on george each other neither one of them providing any evidence to us so we so we can know what materials were confiscated brecker awful so how do we know how do we resolve this what needs to happen at the district court level or does that happen you know it we believe something grand of summary judgment was itself improper and we believe the case should be remanded to the district court to determine to flush out the materials or the notes themselves the fennec in some of these under seal so that the district court thinking it can analyze the contents of the notes and i see that my time is up so i want to you know the rest of my time so you may do defendant's position should have known that their action was violating clearly established law mckay but he's decided by this court states that materials cannot be confiscated if they are not racially inflammatory if they're inciting violence or racially inflammatory enough to incite violence we don't know exactly what was confiscated and it may be that some of the material was confiscated aboard and some was not but and so as to the stuff that was not i suppose that's where your argument comes in that it was clearly used exactly for the materials i mean in harrison and other case the court stated that even materials directly related to the b d f were not confiscate a ball and that would be a first amendment violation if those materials didn't issue a call to violence and in this case again there's nothing in the record to indicate that the materials did issue such a call and it which but if they were if the materials related for example to george jackson that would be co even then your honor so long as there wasn't a specific call to action per harrison if there wasn't a specific call to action or called violence that they would not be confiscated ball under what principle so that's what the court said in that case just saying that it wasn't a threat to prison and there may be a good pina logical and safety reason for that even if an individual piece of those is not immediately threatening absolutely right however in this case banned list ok and other writings about black august that's pretty general that's in the cut and cap and no decoration that's not on the list we don't know what those specific writings were so presumably they weren't on the list if you had access to them while he was confronted serious warning signs he reviewed materials that he concluded would put sawyer risk and would also jeopardize institutional security and what this case hinges on is the deference of under supreme court authority to hav as experience base well defined and part of the problem is we can't seems to me determine whether ear properly or in appropriately exercise discretion because we still don't know what most of the materials are and if they are as described in the complaint it's hard for me to see how they would all be under the rubric of you know problematic materials that could be confiscated yes there are limits i thought there was no dispute in the record regarding what the content was of what was withheld and soyuz complaint supplemental excerpts one forty one to one forty two seems not to really be responsive to the at least the complaint and i understand there are sort of problems between the complaint summary judgment material but there certainly are things listed in the complaint that do not fall within the list of materials and s c r ninety nine you know howard zinn's history of the united states is not a picture of george jackson is not an image a writing about black august is not any of those things isn't even close and so i just have a problem with the way this ended up foreshortened without either further discovery or some other perceiving to figure out what exactly is contained in this material your are part of the only thing that's at issue on appeal is you know it's not the picture it's not the article all that sawyer is challenging on this appeal is his notes and interpretations from those materials so right and his know that's he says i placed him my complaint concern a bunch of things that are not black artist or black artist related when he doesn't he never says that his writings are not black august or george jackson related he only argues that black august is in a prison gang concept so that he can write about those things and that's not a problem but i mean if we look at also on summary judgment sergeant having you know submitted a property receipt and he said in that and that's a supplement except one hundred at the top and it says what he confiscated was black august and joy and other written material indicative whatever that me and i mean that's his interpretation other written material indicative of the beach  based analysis of each and every no when it was undisputed that they were about black august and george jackson also that's consistent with you but how do you how do you get and how do you get handwritten notes about friends caucus the trial if they're looking at the same thing that's the whole problem he doesn't give us an inventory of what of what of what he took so he can given him i mean it's not clear that he would know where all these quotes does he  no does he have this stuff to destroy that he still has it and he still has it well then it should be easy enough i mean you could you could provide this to the district court in camera couldn't you and we could but i don't think we need to because we're just supposed to sort of buy a pig in a says well i think this is all gang related and i'm an expert and so you can't consider this as to whether this violates the prisoner's first amendment rights because i say it doesn't well because sawyer never came back on difficult for a plaintiff a prisoner to have same access to information from the prison those officials he wants to stay till he can get more information and necessary discovery so that's what what he's asking for so i'm just recording even rule on that apparently may have overlooked it as being a fifty sixty request but why and why shouldn't that be granted here your are my interpretation of that and also the district courts i believe was that that had to do with his requests to identify additional evidence and so i think he was looking for discovery that try and identify well regardless if they if the record is incomplete and does not show what it is that was confiscated how in the world can you get summary judgment that the un named undisclosed materials that were confiscated were properly confiscated that's your burden to get summary judgment is start yes or no it's your burden to obtain summary judgment that's correct it's ok and so how can we determine that it was proper if we don't know what was confiscated exactly we don't need to know exactly what materials to be as a whole with out having done any analysis of the contents of the season notes whatever they were sent that the problem here that it's very hard for you to argue that you maintain your burden in the face of that deference given to unknown interpretation of a no notes so so you're presumably knew what each of his notes were about he knew the authors they were from and he didn't come back and he knew the titles of each of the one nine hundred source materials but he didn't come back and say no so what's a district court have no basis to decide what these notes w didn't have the notes and it's you who are seeking summary judgment well but not mr sawyer he was seeking a try what the supreme court said and beardsley banks is that it looks at the reasonable relation a summary statement saying i'm an expert and i've decided that all this stuff that i'm not telling you what senator showing us and it was appropriate for me to confiscate it he didn't there's the record isn't there his conclusion is there maybe it's a little bit like saying here are the facts about you know the violent things that were happening at the prison and it was my judgment that so and so needed to be removed to a different it's find it's but it's just a matter of form but we don't have anything that addresses what sawyer said he said he took my notes on howard's the history of the united states he took my notes on mousy little red book he took my notes on france kafka's the trial and how do we know that those notes related to george jackson and black august is he doesn't dispute that they did he didn't come back on opposition a summary judgment and say this had nothing to do with black august this had nothing to do with dr george jackson he just argued that black august as a concept that's not prison gang related that's not b d f related and on that matter we defer to having a professional any of are any of these on the list they are not on the on the list the list is an exclusive it's not an and or an exhaustive list also just because his notes and interpretations from those items i mean just because those items on the list  we the court i'd like to begin by correcting defendant's comments on the record so i repeatedly disputed that his nose review jeff related throughout the record he said that the research was in no way in regard to amassing documentation on the beach you have prison gang to the plaintiff reasonably related to legitimately logical interests here the district court had an obligation to determine whether mr sword's notes on the likes of the trial and little red book actually implicated prison security or even the v g f and three it consistently never makes any attempt to justify the seizure of more than seven of the nineteen materials the senate consistently ignores the other twelve thank you counsel the case just argued you submitted we are appreciate helpful arguments from all of you on this challenging case u c irvine you've done a lot of work today and we appreciate that it's helpful to us we will now take about a ten minute recess before hearing the remainder of t