and this court should reverse the district court in grant mr dayne qualified immunity for three reasons first bradley in broad time do not provide notice that the act of asking an inmate to rewrite an abusive grievance on one occasion is unconstitutional beyond debate and that was just on the facts he asked him to rewrite it he didn't rewrite it and then he refused to file it well your honor he asked that mr ricci rewrite it mr ricci did not do so and so that it became administratively withdrawn and actually in a this court held that asking her requiring an inmate to remove inappropriate statements from a grievance was not the sort of punishment that bradley was concerned with and was perfectly constitutional so the conduct that mr  in two thousand and eleven was something that this court had already approved of in the clark decision additionally the due process and exhaustion case law repeatedly counsels that prison officials may decide what their grievances times can  receive and that when they enforce those group grievance procedures they are perfectly entitled to do so without implicating the constitutional rights of the inmates and so the same conduct that this court and the supreme court repeatedly find constitutional and even encouraged for the proper running of the grievances cannot be somehow considered differently just because the court is reviewing it under the first amendment context and my third point would be that the supreme court has held that qualified immunity is appropriate where the weight of authority in the circuit cases holds that a right does not exist and in this instance the ninth circuit is the only court that has held that disrespectful language in grievances is protected and no court has held that an inmate has a right to include whatever he wants in a grievance without being asked to simply rewrite it and november of two thousand and twelve when the district court judge first considered this case he dismissed it outright said that it had not even stated a claim and the supreme court has recognized that it's unfair to deny qualified immunity to lay people and prison officials when even judges disagree about the constitutionality of something so the fact that it was not readily apparent to the federal judge in two thousand twelve that this conduct was unconstitutional means that it would be really hard to say that some prison official doing his job would i've known that something that a federal judge did not recognize well you know i i have a lot of empathy for federal district judge this but i don't think the standard is whether the federal district judge knows i think the standard is whether it's been clearly established and i don't think we look to federal district court decisions to establish that correct your honor but i think it just demonstrates the fact that this was not beyond debate that the in the minds of every reasonable prison official which is the standard for qualified immunity that there should have been beyond debate in fact in the zeal or decision the supreme court said that the fact that courts are divided demonstrates that the law is not well established and so i think the the bigger the more important point is that there's no precedent on the books in two thousand and eleven particularize to the facts of the case that mr dane confronted or the situation that mr dane confronted himself and the fact that there's disagreement among the circuit courts further demonstrates that this right isn't clearly established and i think it is telling that even district court judges thought that this hadn't even stated a claim let alone was something that was clearly established and this case is different from bradley because as this court recognized in clark asking an inmate even requiring an inmate to rewrite a grievance or to remove inappropriate statements is not the sort of punishment or penalty that bradley was concerned with and brought home which is the other case that the plaintiff or lie or that the mr ricci relies on is was concerned with a warning or a threat written on the grievance lift that's not what happened here there was no warning there is simply a one time direction to rewrite the grievance so it's distinct from broad time as well and no reasonable prison official would have thought that just asking him to rewrite it would to making a threat but it wasn't just rewriting it it was after it was rewritten and pretty much continued in the same way it turns that the sanction for the just refer to language is not the you have to rewrite it it's rather that if you don't rewrite it we are not we will not process the grievance the sanction is not rewriting the sanction is we won't process well there's two choices there your honor either you rewrite it to conform to the prison's established grievance procedure or you're not able to access that established group grievance procedure well i think that's what i just said here you and i are in agreement as to what happened and the exhaustion case law makes clear that inmates do have a right to grieve but they have a right to do so in line with refuse to process a grievance i mean how the brought him just says that i think that your honor respectfully i think that broad time says that grievance but disrespectful language is protected under bradley from penalty or punishment such that you can't retaliate against somebody for it and what the brought home court found to be potentially retaliatory there was an open question of fact in that decision that they remanded to the district court was the fact that there was a threat written by the grievance appeal court nater on that grievance form and there was also a memorandum which indicated that that grievance nader had recommended that that in me be transferred and they did and the court said that those two things together could potentially create an adverse action that would chill and reasonable and made  why wouldn't it be would be retaliatory if they just refused to file the grief it's because your honor in two thousand and eleven there was no court decision that had ever found that simply refusing to process a grievance was an adverse action that could support a retaliation claim under section one hundred three in fact there are many district court decisions that find that this sort of action is not something that is more wasn't available to him so it doesn't impede his right to file a lawsuit which was what bradley was concerned with the right to access the courts as part of the right to petition the government and in fact in the response brief mr rich you basically conceded that he didn't have an actionable claim in the grievance that he was trying to submit and so for that reason there's no actual injury or other damage to non frivolous legal claim and for that  good morning and may it please the court my name is edward piper and i represent mr ritchie the respondent i'm going to focus my argument on the second prong of the qualified immunity analysis of course i'm happy to answer any other questions the court may have but my sense is that that likely is where the rubber is going to meet the road here and in addition to the points we made in our briefing i've got three additional points i'd like to add and i'm going to start where i was planning on ending and address the district court cases that analysis through which the court looks at whether authority clear clearly establishes the rule that's applicable in this case and that decision says quote we began our inquiry by looking to binding precedent if the ri clearly established by decisional authority of the supreme court or this circuit our inquiry should come to an end now as i say in a moment and i think is the court observed the broad i'm in the bradley cases are binding precedent and so far as the issues in this case are concerned and so because there is binding precedent the inquiry should come to an empty council of the certainly to me these seem to be binding on the question whether it is right to petition is impacted by the not filing the grievance with offensive language but why are they binding on the issue of retaliation because they deal with what is essentially the same set of facts now in establishing urge in showing clearly established law we don't need to point to a case that is on all fours meaning that we don't need to point to question squarely it said citing the second circuit case the question for the district court to ask is whether the record of the record taken in the light most favorable to the plaintiff reveal statements by the defendant that a reasonable fact finder can interpret some form of punishment or adverse regulatory action would follow now i think that the briefing has made very clear and reasonable but that argument elides the notion it's kind of a logical argument is that the unconstitutional action of refusing to file is itself retaliation ordinarily retaliation is and gage in some activity is protected and because i the activity protected the defendant does something else to me but here what is protected is the filing and the defendant refused to allow the filing and you say that's retaliation rather than merely an unconstitutional  with that that's correct your honor and i agree that in maybe the run of the cases the retaliation might take some other form in other words it might be that the grievance is processed but because the person doesn't like the grievance it puts mr richie in solitary confinement or transfers him to a less desirable location is a matter and terms of any remedy that mr ritchie might be entitled to whether this is a viable cause of action retaliation i don't think there are different remedies your honor and i don't think that's an issue the kuantan figure who matters and i think the answer is no i don't think it matters for the purposes of this interlocutory appeal and the reason for that is that given the facts of this case i think is as  observed that the questions are sort of one in the same and let me point out then that the one sentence the offender has suggested that a complex reading of these cases is necessary and we disagree with that and i point out the one sentence based on which i think the court can and should decide both issues and that's from the broad and kates it's page twelve seventy one of that decision in the sentence is disrespectful language in a prisoner's grievance is itself protected activity under the first amendment i think you've said that's what the case says and that sentence i think does dispose of both the retaliation issue and the substantive right to petition issue why does that send dispose of the retaliation it disposes of the retaliation issue because based on the record before the court there at minimum it is a tribal issue of fact as to whether  that protected activity mr rich is disrespectful language was the reason that he was refused access to the region system as a whole the rewrites themselves and this isn't pages one sixty eight and one sixty nine of the excerpts of record say that the grievances being refused because of it's quote unnecessary and inappropriate language and in fact mr doney in his declaration the summary judgment proceedings confirmed as much she used exactly the same word inappropriate so excuse me if i me counsel the problem is i don't think you've really addressed judge fletcher's concern which is also my concern so you have this language which you contend and i would say there is some support for is protected under the first amendment right and then you're saying that same act not only constitutes the act but the retaliation in other words there isn't a second act by somebody to retaliate there the very the constitutional violation you complained of is not only the constitutional violation but also the retaliation violation and i run it well that's that's my question it's a bit of a sort of almost like a logical problem grier and i think maybe the way to resolve it is to note that in this context the exercise of the constitutional right takes place over time  the filing of the grievance is an exercise of mr rich's right to petition as well as his participation in the process and so he is it's not say like an employment case where it would be a logical for an that it doesn't matter not just to say if the defendant violated the right to petition and did so in such a fashionista forfeit the right to qualified immunity it doesn't matter whether at the same time he for right to a clam to defend on qualified immunity grounds from and from retaliation claim so why do we care why can't we just keep the definition for retaliation within its ordinary easy understand easy to understand established he got his he got his day in court he wins in court why does he need retaliation on top of that so this is a critical point around when i say adjudication i don't mean adjudication in this lawsuit what i mean is the adjudication of perhaps even a not legal sense of whether it was right or wrong in the context of the prison but i think he's just going to get that too by i'm not my father's i'm my apologises is he whims on the petition for grievances claim and qualified immunity is not sustained as to that claim so he wins on that i certainly agree with that you're i don't know and this is a hypothetical if he wins on that what consequence is there as a practical matter of winning or planning on the retaliation claim and i think i heard you say there is no consequence i think that's right around and i think i may have been misunderstanding the question but as as it's framed that way i think there is no consequence there are two conceptually distinct claims but in terms of remedies in terms of the facts that we're talking about on the ground here i don't think there is a practical distinction does does that answer the question i think i think it does do have a sort of a and notional understanding of retaliation i do this and then you do something else to me because you didn't like what i did and of my activity is constitutionally protected the retaliation is unconstitutional that's right and in the best thing that's the ordinary understanding of retaliation and you're pushing a little bit on that understanding and i think the reason for that is fletcher is that this is a unique set of facts in that there were the grievance process takes place over a period of time there's an investigation there's adjudication and in this set of facts it's possible for that to happen ok thank you very much and you for the questions from the bench and your honor counsel is correct that brought hime stated that bradley had held the disrespectful language and agreements in the ninth circuit is protected however it's protected from two things according to bradley in broad time under bradley is protected from punishment mr richie was not punished under broad time it's protected from retaliation which in that case was some sort of adverse action here there has been no adverse action no course there has been adverse action it may or may not be adverse action at the time that mr dane acted well it doesn't take much brains to figure out that if i'm trying to grieve and you won't let me do it there chad myers well your honor the prison has a right to have inmates have no right to a specific grievance process they have a right to access established a stablish grievance procedure in place at the prison and so if prisons have a rule that would prevent an inmate from accessing it if they don't follow that rule that's been one of the rules unconstitutional here i would suggest your prisons may not punish an inmate for using that language about punishment in that context has been distinguished by this court in the clarke decision as not applying to a simple direction to remove inappropriate statements from a grievance and so mr dayne acting in two thousand and eleven had that case as guidance as to the specific situation that he confronted and the only case to speak to the specific situation that he confronted had said that that conduct was just fine and the supreme court has been very clear that where there is not a particular ised case holding that the conduct that it an official engages in is unconstitutional that that person is entitled to qualified immunity different form of question is kind of the flip of where i ask you the refusal to file is an unconstitutional act whose unconstitutionality should have been obvious to any reasonable official so i take that as the if does it matter what we call it that is to say the defendant prison official knew or should have known because any competent prison official would have known the does act was unconstitutional so called for an immunity is designed to protect freedom of action for the question would be whether in the retaliation conduct the rights were all similarly clearly establish whether each each step of that retaliation ellis was clearly established and here there was nothing in two thousand and eleven telling mr dayne that simply refusing to process a grievance was an adverse action that could support a retaliation claims on that basis he would be a entitle to qualified immunity i see him well over time but i would just like to say that recently in two thousand and seventeen the supreme court held that where the courts are divided a right cannot be clearly established in this case there is no supreme court precedent on point there is a consensus in the circuit court that the right that mr ricci is trying to redress in this case does not you know as well as we do that the law of that governs the people the actors in the circuit the circuit law and our circuit law is wrong this record will get around sooner or later usually sooner to telling us that we're wrong i i think for purposes of qualified immunity and i struck a law governs even assuming it does your honor i would argue that bradley and brought him are not presidential on the point in a particular eyes mayor that would have put mr dayne on notice that what he did was different depending on whether we call it but the gist of agreements is claim retaliation and i think practically speaking your honor i mean if i need to constitutional violations is different than finding one constitutional violation however as you know we would state that mr dane is entitled to qualified immunity from both ok causes of action thank you i think both sides now as i recollect you are doing is pro bono for i would like to thank you  behalf of the court for doing this problem a work we find it very useful this is not a preview of the merits and will thank you too although you're being paid thank both sides for a very useful argument now submitted for me may i add that i think both counsel did a superb job this morning of answering very difficult questions and i was certainly happy that we had argument because you both did a great job i think so thank you very much