could have been drawn reasonably there from the second issue is whether that admissible evidence described in violations of mr johnson's constitutional rights and then the third issue is whether or not the constitutional violations described by mr johnson's civil evidence would have been obvious to reasonable court corrections officers as early as two thousand and nine with respect to the exclusion evidence our brief briefing is pretty clear on that and there are four categories of evidence that were excluded the most important category of excluded evidence was mr johnson's affidavit and the district court struck seven paragraphs from that affidavit none for it for here saying some targets are strictly hearsay and none of those statements would have been categorically inadmissible a trial one of the rules that we would ask the court to consider would be clarifying the admissibility of summary judgment evidence  especially when there are objections there are a handful district court cases discussing what the appropriate degree or what the expected likelihood needs to be before a self serving affidavit or some we can assume that somebody would answer good and my question is in terms of the evidence that was struck is there any of that that you think is central to actually sustaining a claim at this stage of litigation the comments about the code of silence some of the statements by the corrections officer saying that they would not or could not give statements to mr johnson and less well some of them categorically denied it and other one said we can't give you those statements unless there is a felony mr silva decided if he did not include the words whites i think it's a much tougher call but one of our fundamental positions is that when a corrections officer will use race as an explicit reason for doing something twice and mr johnson's case one with a telephone call and one with the boxes it's reasonable to ascribe race to see somebody who does that being said if if mr johnson's evidence or most of it were admitted there are six different events that i think we consider mistreatment of mr johnson the first of which being the denial of boxes the second of which being the threatened bank transfer after he said he was going to file happened and sort of did the transfer hadn't started not so how does it state a cause of action if it didn't happen at the end of the day because it was a threat spurred by either mr valma it would be a cause of action if it were a threat spurred by mr johnson's resort to the legal process so is it a retaliation claim that yes so one of one of our positions is that there are two potential intense that could have been underlying much of mr johnson's mistreatment could have been retaliation for his previous successful litigation and it could have been because he is african american so what are the damages associated with that bunch transferred or not i mean not much your  honor he i think one of the most difficult parts of this case is the harm that mr johnson suffered is only modestly compensable at best i think the greatest compensation to chance for compensation that he had was the public records act  that was decided to be untimely and the reason for that being there are statute or there were between two thousand and nine and two thousand and eleven statutory damages statutory minimum damages for violations of the public records  assuming the entire time period was at issue he's looking at about three thousand dollars if the statutory minimum was was granted now it's a little bit i think a little bit ten us any way to grapple with this if he has some damages maybe not lots does he still have a claim yes and i'm i'm i'm particularly concerned with and i haven't found anything but i anything on point but i'm very concerned with the idea that without without real recourse you know to go back to the public records act which if the events do you see as falling within that the bank transfer the boxes the phone call or the phone call i think only the phone call maybe maybe the boxes i don't think that the record supports an argument that documents were taken from the boxes and he was prejudiced thereby but i think that the next best and that's close so i had a specific question about the claims against mr sager if you sume that there was a foundation for potential affirmative discrimination because of the nature of the comments you still need to show that there was disparate treatment similarly situated individuals so with respect to mr sager what is the evidence we look to on the disparate treatment i think the most important evidence is actually evidence that i don't think the district court considered and that would be the three affidavits that mr johnson submitted from other inmates white and made saying are actually i think in that correct that the ethnicity of those inmates is unclear and that's something that i understand the difficulties of proceeding pro se but we have his statement which is admissible on that point but then we don't have any comparable treatment for someone a dentist find a different race so how would i think we can gain that claim i think we might ok i think it is i think it is something that is is uncertain it's not it's not clear from the thank your honour's and may please the court i am assistant attorney general tim fuller and i represent the defendant correctional officer in this case mr johnson's claims were properly dismissed because at the summary judgment stage he failed to come  significant probative and admissible evidence to support his claims the trial this record based on that properly concluded that johnson had fought failed to show a tribal issue on any of his claims against seven correctional official i'd like to first discuss the evidence jury issues which were raised by opposing counsel the reality is that those evidentiary rulings work correctly the district court excluded evidence that would not have been a miscible trial based on hearsay based on improper character evidence but ultimately it wouldn't matter whether the court to consider those pieces of evidence because they would not of impact and were not relevant to any of the claims made by mr johnson it would simply have not mattered the evidence in terms of the cardboard boxes issue the testimony from staff in addition court demonstrated that there was a policy that prohibited cardboard boxes the policy was also based on statements by the monroe fire honor other inmates were not allowed explaining why you can't respond with a yes or no were other inmates allowed cardboard boxes yes or no yes your honor there was an exception to the policy that allowed a in to request an exception to the prohibition of cardboard boxes from the superintendent the record demonstrates the mr johnson never asked for such an exception additional ways other inmates who say they were allowed boxes the petition the superintendent the affidavit the mr johnson prison it's unclear are the affidavits from are going to get along a whole lot better if you start with a yes or no or i don't know  however in addition those affidavits are silent on the point of whether sergeant sylva himself allowed them to have it boxes whether he affirmatively told them you were allowed to have these boxes and that's the relevant inquiry in terms of an equal protection  claim whether this individual is true to mr johnson differently based on his race there is no evidence that any white inmate was allowed by sergeant silva to possess boxes there's no evidence the record suggests that other than the davit indicates that he went to counselor to sergeant silva's office to discuss whether these boxes that he'd received from the property officer at that point johnson accused sergeant silva of favoring white drawn against you meaning the state and couldn't be inferred there a reasonable jury could infer that what he's basically saying is that i write how i won whites get boxes and other people don't necessarily laughs now that may not be true but that's certainly a legitimate inference that someone could draw from that evidence and no your honor because that's not the only piece of evidence we have on the record on summary judgment not every possible  ences drawn in in the favor than i'm willing parties only reasonable inferences here we have staff correctional officers non defendants repeatedly telling mr johnson that inmates were not allowed to possess cardboard boxes even when mr johnson filed except for that one statement that sergeant silva allowed any individual white offender to have cardboard boxes is it your client's position the exceptions to the cardboard box rule are only allowed to pollinate petition to the institution superintendent yes your honor that was the policy at the time the exceptions of the policy were only allowed upon a petition to the superintendent michael silva who has no authority to deviate from that policy that is correct at that time your honor he had no authority to uva from that policy does he now the evidence and the yes your honor and the evidence in the superintendent's declaration indicated  the incident with mr johnson they were inmates are allowed to retain one cardboard box for illegal materials because the policy changed so that was a change in policy are or in addition so when if it's correct that silva said disinvestments i decide who gets cardboard boxes that's what mr johnson claims he would have been acting contrary to the policy of the institution evidence of intent no your honor i'm not saying that that's not evidence at all of intent i'm saying the court on a summary judgment motion considers all the evidence including uncontested evidence presented by the defendants and draws inferences but those what mr johnson's statement attributed to michael silva is true so it was saying he had the authority to decide who got boxes be they white african american or otherwise and apparently that's contrary to the policy of the institution at the time yes you're on your correct but that does not matter in terms of an equal protection claim because mr johnson must show sergeant silva discriminated against him based on his race that statement that potential in violation of policy does not demonstrate that certain civil was exercising his authority based on race or his lack of authority based on race as sergeants obey indicated in his declaration it was a daily battle to take these cardboard boxes from offenders that the unit had two hundred twenty offenders that were staffed by two officers these officers could not confiscate every cardboard box in the unit and defendants have not argued that they have however when they saw a inmate they were not allowed to have that box in some cases they confiscated those boxes should also be noted that sergeant silver himself never confiscated any boxes from mr johnson he simply advised him of the policy that no boxes were allowed maximum is not your are is it minimum your honor again i believe i don't think there's anything in the record not me speculating as to what security level this was and we do know from the record that johnson was transferred to this institution based on prior litigation that he had file and his previous institution that is in the record business that is correct and my impression from reading that was that the results the result he had the movement was from a higher level of security to a lower level is here is that correct i don't know i don't know your are they used the term privilege prison your honor there's a there's a reference a privilege prison as well as to sex offenders and the unit that can mr johnson was housed in is a privilege facility because sex offenders are housed there it's where the sex offender treatment program is is that resides in terms of washington department of corrections and i believe that's what mr johnson's referring to and why the right there are various references to him not being a sex offender that's because the sex offender treatment program is in that you know what about the silv comment about he didn't care for legal beagles which of course may have come from the fact that he knew that mr johnson was transferred in there as a result of a legal settlement of prior cases why wouldn't that be enough at least to serve up for trial purposes whether or not there was retaliation on account of his prior exercising his rights with respect to legal rights your honor if i'm sam out of time answer  question it could be evidence of that your honor but that single statement is not connected to any adverse action that sergeant silva himself conducted there's no evidence that mr silva statement related to a general dislike for legal bagels is connected to any of his treatment with respect to mr john mr johnson in this case his actions were based on present policy which is that cardboard boxes were not allowed in the unit and in terms of  shows that mr johnson did not provide staff a copy that a cesarean till he was going to be moved at that point the move is immediately terminated based on that evidence there is no motivation that mr silva was deny having any boxes taken from them notwithstanding continued interactions with corrections officers  a good chunk of this case i think is as the panel was has made clear disputed facts and i think mr johnson is entitled to have but he did submit enough evidence to get to a jury  it's not the most persuasive case and i think for practitioners who are very familiar with pro se actions probably approach it with a degree of skepticism but particularly like to thank you mr davis for serving as a pro bono attorney on appointment from the ninth circuit it's always easier for us and i know for the government as well to have a brief that's well organized and you can respond to in kind so we appreciate your briefing we also appreciate the state's argument here this morning the case just argued is submitted