Can you please united these brass and gristle? You can control in by the way. Good morning, Your Honours. May it please the court. My name is Ellen Mossman with Deckard and my co-counsel Ben Barnett and myself were appointed by this court to represent a pellant Joseph Watson, an inmate challenging retaliation at SCI summer set in Pennsylvania. I would like to reserve two minutes for a battle. Okay, you may have without running your solution you may have just used it all. No, no, no. Just a stay-stop now. Just a stay-stop. We ask this court to reverse the district court's grain of summary judgment. I would like today to focus on three points. First, the district court failed entirely to evaluate whether Mr. Watson was actually guilty of the misconduct, including the same decision defense. Second, Jen. Under our case law, why would the court even have to do that? Don't they, isn't the test something that's ill? Whether or not there's any evidence to support the finding of the disciplinary hearing? Well, first of all, Your Honor, Hill was not a prison inmate retaliation case. It was in a different context
. And second, even if the district court was only required to evaluate whether some evidence supported the application of the prison policy, the district court didn't do that here because it took the evidence in a light against the non-moving party, Mr. Watson, and by concluding that the radio was broken, when in fact he said that the radio was loose or wiggly. And he admitted it was taped, though, didn't he? He did, but the district court didn't said that the radio was altered because the radio was broken and tape was affixed to it. That sort of confusing the evidence there. Well, I thought he claimed that the guard broke it after it had already been taped. He did claim that. All right. So the taping occurred before the breaking. If we accept this true as we must, his allegation that the guard actually broke the antenna, don't we, nevertheless, have to accept that he himself altered it by taping it before the guard broke it? We do have to accept that he taped the antenna, Your Honor, but we don't have to accept that it was altered because he taped it. And the district court never analyzed. I can't be considered that it was altered, and that he conceded the fact of the tape and customizing it altered, but these were not the regulations. This is 815, encompasses that kind of alteration. He never conceded that it was altered. He conceded that it was taped, and the district court failed to analyze whether taping an antenna with a clear piece of tape constitutes altering an antenna. It had been taped about a roughly a year before? It had been taped more than a year before when he was during, when he was being transferred
. And there were numerous inspections during the course of that year and nothing mentioned? That's correct, Your Honor. And he also submitted inmate affidavits who had, you know, who had antennas that were concededly broken. But they didn't open because two of those affidavits, they don't name the name of the CO who took the radio. In bases affidavits, they didn't name the same CO, said that he was disciplined for it, and the disciplinary action was upheld. Well, Your Honor, we would submit that the two affidavits with the unnamed prison guards, it's up to the jury to determine whether or not that matters to whether these affidavits are credible. It can still be some evidence that the prison guards were retaliating against Mr. Watson for his protected conduct. And as to me. And your evidence that they were retaliating as well? I'm sorry? And the evidence that they were retaliating or, I guess I'm focusing mostly on Arbor Secrets. The evidence of retaliation is what? Well, the evidence is that he didn't say, I'm giving you a misconduct because your radio is altered and it constitutes a contraband. He said, I'm giving you a misconduct because you gave my officers a hard time when you were arguing about fixing your radio and requesting agreements for him. And you weren't polite. You weren't polite. And, you know, if the prison had said, I'm giving you a misconduct because of insolence, that would be one thing. But that's not the situation we have here
. We have the misconduct being given for an altered radio, and then we have a different reason being given by the officer who appropriates the radio. Are you saying it wasn't an altered radio or it wasn't altered radio and they shouldn't have given them the misconduct because it was based on a territory motor? I'm saying that it wasn't an altered radio to begin with? It wasn't. No, but I'm also saying that if it wasn't, you lose the case. If it wasn't altered radio, I would say that the district court has to analyze whether or not it's an altered radio. If it is altered, yes. It would be the misconduct would be just right. It would be valid. Yes. The law on this of EL motive, right? Isn't this part of the misconduct with the murder? Yeah, that's the same decision defense. If he's clearly guilty, I mean, we would point to the Carter case, you're right, Your Honor, that if he's clearly guilty of the misconduct, no matter whether there was retaliatory motive involved, this is the prison retaliation conduct context. And we recognize that if he was guilty of this misconduct, they would have made the same decision than the officers win. We just don't have that situation here. Turning to temporal proximity, which the appellees raised in their brief, he had engaged in two protected conducts, one of which was requesting a grievance form and the other was filing and prosecuting a lawsuit. And the appellees concede that the misconduct, issuance of the misconduct followed hard on the heels of the request for a grievance form yet still challenge whether or not there's temporal proximity there. We're talking about a period of mere hours
. And this evidence is bolstered by Officer Kutz's statement as to why he was being given the misconduct. The insolence and requesting a grievance form, Your Honor, and that to me, to us is enough evidence to survive summary judgment on the position of it. I think it's a footnote that she questioned whether or not that what we tell you, she would write it to the level of conduct necessary to kill somebody's first and then the words. Whether the end of that, but who is why you reaction to it? Whether the issuance of a misconduct is sufficient adverse action. Right. Didn't what happened to you. She's saying she's doubtful. That's enough to show someone's concentration rates. So that would take away the cross-eation issue. You wouldn't have it. And so I'm confused whether you're talking about the protected conduct element or the adverse action. The adverse action is not a sufficient adverse action. Your Honor, first of all, Appellis have conceded that issue by not arguing it before this court. They assumed for the sake of the app, the appellate briefing that at the adverse action element was, was for further. But even so, the issuance of a misconduct is pretty clearly an adverse action
. It can have effects such as, you know, change in sell assignment, restriction on privileges, which are very important to the inmate population. And it can also affect their ability for pre-release programs and parole. Because if you have a certain number of misconducts in a certain period, you're not even eligible for, you know, work-release programs, that sort of thing. I mean, this is strictly, I don't see the recent supplies. I would think that a radio with an antenna would be prohibited to consume any of it. And the antenna could make one hell of a weapon. But that's not a problem. The presence of the allow-in-ten is radio antennas? It appears so, Your Honor, and there was something in Appellis brief about how they were considering changing over to tablets. And, you know, quite frankly, that makes sense, but that's not really an issue here, because the radio itself wasn't contraband. And we would submit that, you know, with a loose radio antenna, it is also not contraband. Simply because of the piece of tape, which doesn't actually change the radio antenna in any way, it just makes it more secure. What does it mean to be altered from this original state? Altered means to make different without changing into something else. Is it your own, that's a great weapon, which is dictionary definition. It's right off the top of your head, that's very good. Well, I think that's what the dictionary definition is
. Writing dictionary is good. Don't take me word for word, but I believe that's what it is. And, you know, we would submit that when you're putting a clear piece of tape, now I know this is semantics, but if it were a blue piece of tape, we might be in a different state. Why? Because it's not making it into something else. If it's a clear piece of tape, you can see through it. You can see the antenna. It's not, it is exactly the same except something clear. What is my antenna's broken, totally dislodged, and then I put it back together with clear tape? Is that altered? Well, I would say that it is broken, which damage destroyed, also fulfills the contraband, so it might get it to happen. But the antenna doesn't fall off entirely, and it's just hanging there by a thread, and I prop it back up and take it with clear tape, that's not altered. The distinction turned on something that fine is to whether the antenna actually falls off or whether it's hanging by a thread, or... The distinction before this court, I would submit, doesn't turn on this. No, I mean for the prison. For the folks that are trying to regulate whether something's altered or not in the prison context
. Are you supposed to define altered based on those sorts of distinction? I don't think that they need to define altered based on how loose it is. I would just submit. So I can't define altered based on, hey, you put a foreign object that doesn't belong on a radio, mainly tape, which gives us some concern, because that might mean that if I just unwind the tape, I've now read a weapon that I could use. Maybe they can decide that, but the real issue here in your honor is that the district court didn't make any inquiry into whether or not it was altered. It said that it was broken, which is clearly contrary to the summary judgment record, and therefore it was altered. Well, if I were to stick in so. The most men on radios, and look at the way broken, what would they find? Broken, I, for a radio antenna, I would say broken is the radio antenna is separated. It's one of those extending radio antennas that has five pieces, and so you can have part of it left, say three parts of the extension, and then have two of them broken off. I would say that that's broken. It would seem that the prison would have a legitimate interest in removing that broken off piece of radio antenna, but that's not the situation we have here. So this isn't really about dictating where the prison needs to draw the lines. It's about dictating that the district court must make some inquiry into whether the inmate is actually guilty of the misconduct. It just can't rubber stamp a prison's determination that the inmate was guilty of the offense, and use that to, you know, to excuse the case of retaliation. Why wouldn't he mention this area? Why wouldn't Carter say you're wrong? Well, Carter has some pretty good language for us, Your Honor. In Carter, the court recited the evidence of his numerous violations of prison policy, which were totally unrelated to his protected conduct, and said that there was a sizable quantum of evidence showing that he was clearly guilty of these prison infractions
. And the same sort of analysis just didn't occur here. The court accepted that because it was broken, it was therefore altered, and because it was altered, it was contraband, contraband, and then despite the nonsensical application of the prison policy here. And that's what the made it say it was a nonsensical. Nonsensical. Which would suggest that she thought it was just piece of tape, as opposed to a broken antenna? Well, it's really hard to tell what she thought from the opinion, and, you know, we would just submit that the district court has to do some minimal inquiry into what the evidence supports, and it says broken, which, you know, is different from how he described it as loose and wiggly. How would the most mean to find wiggly? Wiggly is you can move it a little bit, but it doesn't come fully off, same with loose, similar definition. There are also genuine issues of material fact that preclude the application of the defense here. It's not entirely material to whether or not this indecision defensifies, but whether officer Klein broke the radio antenna before, which sort of is in the factual pattern of what happened here. The point is, you know, he allegedly broke this radio, and then the prison confiscated, he officer Klein allegedly broke the radio. So, you know, Mr. Watson was giving the officers a hard time about it, and instead of fixing the radio, they said, no, we're going to penalize you for having this broken radio. And that just, this just needs to have some more, this needs to be flushed out more, I see my time. You had eight officers for a left. You have, what is it, Coots? You have Somasco, you pawned, and who is the fourth one? Snyder, your honor. And who is your, do you think your best cases against? I'm out of time, May I finish? Yes, all right
. I would say that the best case is probably against officer Coots, just because of what Mr. Watson says that he said, but Discovery was not fully fleshed out as to the other officers. So, there are certainly good cases that could be developed if this case went to trial. All right, thank you. Thank you. Thank you. Mr. Moecele? Moecele? Moecele, you're welcome. Moecele? Good morning. Good morning, May I please the Court? My name is Kamala, I examine originally. I represent the Appellis in this case. This case has a potential for being considered and resolved as an extremely simple case, regardless of which statement of facts one accepts as to the condition of the radio. It fits the definition of an altered radio or an altered item under the controlling administrative director of the Department of Corrections. But doesn't Carter require that if you're going to rely on that, there has to be clear and overt that you have contraband here? Yes, it does. It requires first the conviction of a misconduct we have
. But in order to have something so clear and overt, the testimony was that this was in whatever state it was when Officer Klein did the inspection on the morning at issue. It's been that way for over a year. Yes. No one had any problem with it whatsoever. So it sounds like it wasn't clear and overt violation of any kind of contraband? Well, I would suggest your honor that it sounds like no one had considered or decided to enforce the regulation with respect to that radio assuming, as we must, because we're on review of a motion for summary judgment, that Watson's account of what was wrong with the radio is, in fact, the ruling account. So I would suggest that for the purposes of DCADM 815, having a radio with a loose and wiggly antenna and a piece of tape on it is clearly a violation of that. But if it's so clear what I wasn't called into play during all the prior inspections before. We simply don't know. And it's something along the lines of municipal and state police officers enforcing minor offenses and traffic offenses. Sometimes we can tell from his affidavit that that enforcement varies. I think I can see that's a tactful way of saying they let it go for a while until he became a real pain in the neck and then they decided that's possible. But on the other hand, assuming that that's true, it fits within the philosophy of law. Anyway, for the same reason, an officer in a pose over someone going 75 who gives attitude, gets written up and the other one who's polite doesn't get written up. Correct. But we also have the United States versus Ren. We have Ohio versus Robinette. And we have cases along those lines like Hartman versus Moore, all of which say in felony cases involving arrests or searches that lead to felony arrests, that if in fact there's an attic with justification for a stop, even if it's in fact pretextual, because they want to develop evidence of a greater offense, that the existence of probable cause for that stop or probable cause for that detention or seizure is an attic with basis to even if pretextual. So what we are saying is the moment, if I understand what you're saying about intent, the intent isn't the issue here. But is Monsman conceded as I think she had to if the radio were in fact altered, then there's a violation. Yes. But what is your response to her challenge that the district court erred when it said that the radio was broken? When in fact the pleading from Mr. Watson is that the officer was the one that broke the radio post-hoc? Well, again, it depends on what you mean by broken. I think it's broken under the account that Watson provided of his radio. In other words, if it's loose and wiggly, you put tape on it to secure it in order to make sure that we call it broken instead of loose and wiggly or altered. I mean, are there distinctions between what those words mean and what broken means? Well, I'm following up on a question you asked my learned opponent a little bit earlier, and that is my point is for DC AM-15 to work, it has to be a clear, bright, overly inclusive type of line that they're enforcing because what we're trying to do is to enforce a proper, a prophylactic rule for institutional security, which they've been conceded in its ruling sense without giving away their particular case in this instance. They don't think there's anything wrong with DC AM-815 on a philosophical sense. We all think that prisons can take away items which because they've been broken or altered or changed in some fashion from their ordinary use, present the possibility for breaking prison rules using them as tools, using them as weapons. So we all understand that, and in order for that thing to work well, there should essentially be permitted to be enforced in a somewhat over inclusive way. Any time that there's something wrong with it, any time that it's not in perfect shape, potentially, it's been damaged potentially, anything that's been done to jury rig it is an alteration. So I'm not, I'm saying that they're entitled in this instance
. We have Ohio versus Robinette. And we have cases along those lines like Hartman versus Moore, all of which say in felony cases involving arrests or searches that lead to felony arrests, that if in fact there's an attic with justification for a stop, even if it's in fact pretextual, because they want to develop evidence of a greater offense, that the existence of probable cause for that stop or probable cause for that detention or seizure is an attic with basis to even if pretextual. So what we are saying is the moment, if I understand what you're saying about intent, the intent isn't the issue here. But is Monsman conceded as I think she had to if the radio were in fact altered, then there's a violation. Yes. But what is your response to her challenge that the district court erred when it said that the radio was broken? When in fact the pleading from Mr. Watson is that the officer was the one that broke the radio post-hoc? Well, again, it depends on what you mean by broken. I think it's broken under the account that Watson provided of his radio. In other words, if it's loose and wiggly, you put tape on it to secure it in order to make sure that we call it broken instead of loose and wiggly or altered. I mean, are there distinctions between what those words mean and what broken means? Well, I'm following up on a question you asked my learned opponent a little bit earlier, and that is my point is for DC AM-15 to work, it has to be a clear, bright, overly inclusive type of line that they're enforcing because what we're trying to do is to enforce a proper, a prophylactic rule for institutional security, which they've been conceded in its ruling sense without giving away their particular case in this instance. They don't think there's anything wrong with DC AM-815 on a philosophical sense. We all think that prisons can take away items which because they've been broken or altered or changed in some fashion from their ordinary use, present the possibility for breaking prison rules using them as tools, using them as weapons. So we all understand that, and in order for that thing to work well, there should essentially be permitted to be enforced in a somewhat over inclusive way. Any time that there's something wrong with it, any time that it's not in perfect shape, potentially, it's been damaged potentially, anything that's been done to jury rig it is an alteration. So I'm not, I'm saying that they're entitled in this instance. Obviously, if we take clients account of what happened as the hearing examiner did, it's not even an issue. But Watson disputes that account, so we have to go with Watson's evidence. And I'm simply saying that if we take Watson's evidence, we're willing to say that that's adequate to satisfy the court of some evidence standard, that that's adequate to satisfy Carter versus McGrady. And I think we have to say that. And I think if it's not, then we can't prevail on the some evidence standard. Because we're not allowed to use clients. And I think this most distinguished current, because of the nature and severity and the indisputed severity of the violation, that was an issue. That's the truth. I mean, what you've got here is an allegation that the radio was in effect broken or disassembled by officer Klein. And that nothing for a year before had happened. And Watson wasn't happy about it. He just, he told him he was unhappy. He was going to file a grievance, ask for a grievance form. And only then six hours later, after he was purportedly told by officer Coots that, hey, you gave the people's morning a hard time and you weren't going to be in the right place. And that's what I'm going to write you up with, misconduct
. Obviously, if we take clients account of what happened as the hearing examiner did, it's not even an issue. But Watson disputes that account, so we have to go with Watson's evidence. And I'm simply saying that if we take Watson's evidence, we're willing to say that that's adequate to satisfy the court of some evidence standard, that that's adequate to satisfy Carter versus McGrady. And I think we have to say that. And I think if it's not, then we can't prevail on the some evidence standard. Because we're not allowed to use clients. And I think this most distinguished current, because of the nature and severity and the indisputed severity of the violation, that was an issue. That's the truth. I mean, what you've got here is an allegation that the radio was in effect broken or disassembled by officer Klein. And that nothing for a year before had happened. And Watson wasn't happy about it. He just, he told him he was unhappy. He was going to file a grievance, ask for a grievance form. And only then six hours later, after he was purportedly told by officer Coots that, hey, you gave the people's morning a hard time and you weren't going to be in the right place. And that's what I'm going to write you up with, misconduct. And that to me seems like the type of issue that's a material issue of fact that needs to be resolved by a jury. And all too often, we decide things on some rejudgment for the purpose of clearing the deck. But this one needs to be worked out. Maybe he's right. Maybe he's wrong. But on this one, even if it was contraband, the hill case cuts both ways. It was a question asked on this monsoon as to whether he'll make work against you. But also, he'll says that discriminatory enforcement of a statute of ordinance is not just of slide simply because the enforcement is otherwise valid. This is simply the moment the enforcement here was otherwise valid. But then you've got this minor thing, which was going to be left that way, you have an escalate because Coots is upset with Watson. He's upset with Watson's demeanor in the morning. And I don't know the answer, but it's really enough for me to decide. Is it? Is for a jury decide? Well, my response to that is the same response that magistrate Judge Lenahan had in writing the opinion. And that is we can set aside any of the imponderables that relate to the existence of the prime of face case, well, not and simply deal with the fact that if the radio was in this state, assuming Coots had a retaliatory motive and recall that Coots was not the one that actually allegedly broke the radio, nor was Coots the one that said that connected it in any way with his. No, but Coots was the one who decided they're writing
. And that to me seems like the type of issue that's a material issue of fact that needs to be resolved by a jury. And all too often, we decide things on some rejudgment for the purpose of clearing the deck. But this one needs to be worked out. Maybe he's right. Maybe he's wrong. But on this one, even if it was contraband, the hill case cuts both ways. It was a question asked on this monsoon as to whether he'll make work against you. But also, he'll says that discriminatory enforcement of a statute of ordinance is not just of slide simply because the enforcement is otherwise valid. This is simply the moment the enforcement here was otherwise valid. But then you've got this minor thing, which was going to be left that way, you have an escalate because Coots is upset with Watson. He's upset with Watson's demeanor in the morning. And I don't know the answer, but it's really enough for me to decide. Is it? Is for a jury decide? Well, my response to that is the same response that magistrate Judge Lenahan had in writing the opinion. And that is we can set aside any of the imponderables that relate to the existence of the prime of face case, well, not and simply deal with the fact that if the radio was in this state, assuming Coots had a retaliatory motive and recall that Coots was not the one that actually allegedly broke the radio, nor was Coots the one that said that connected it in any way with his. No, but Coots was the one who decided they're writing. Coots did write the miscarriage. I mean, you've got a three part test here. One was there a constitutional protected activity. You can see that. And as you should, I'm not not arguing. You shouldn't. Second step is was there an adverse action clearly there was because you got it was conduct. And then was there a causal link between the two? And that's the one that you're suggesting doesn't exist. And because of the clear testimony, I mean, but it of Watson that he was written up because it gave people a hard time. Coots said it gave people a hard time. Coots never really denied it and that he wasn't polite. Again, that's not for us to side as a matter of law because there appear to be issues of material fact that are still out there. And he did it resolved by a jury. Permit me to suggest this. I agree
. Coots did write the miscarriage. I mean, you've got a three part test here. One was there a constitutional protected activity. You can see that. And as you should, I'm not not arguing. You shouldn't. Second step is was there an adverse action clearly there was because you got it was conduct. And then was there a causal link between the two? And that's the one that you're suggesting doesn't exist. And because of the clear testimony, I mean, but it of Watson that he was written up because it gave people a hard time. Coots said it gave people a hard time. Coots never really denied it and that he wasn't polite. Again, that's not for us to side as a matter of law because there appear to be issues of material fact that are still out there. And he did it resolved by a jury. Permit me to suggest this. I agree. What let's say for the purposes of your question that that all of the prime facet case exists over the purposes of a retaliation claim. But our response here is in the nature of an affirmative defense. And it's one that's rooted in the philosophy of our law that at times, motive or intent doesn't matter if the evidence is sufficient to demonstrate that the wrong for which the individual claim what about language from hell the judge and the witness to you that in this kind of situation discriminatory enforcement may not be okay by. Well, then I think you have a much greater problem in the Watson case. You have a problem with browser v. Horn because if it's read broadly enough to incorporate it says discriminatory. Now, if it's read broadly enough to incorporate any evil motive, including a retaliatory motive, then your opinion in browser v. Horn under which we've been operating for 15 years is wrong because it says that in fact, regardless of the evil motive or in video's motive or retaliatory motive, if in fact, and that's what Carter versus McGrady is based on, rather be warned, if in fact, regardless of the motive, in other words, it's street wisdom that if in the neighborhoods where I am familiar, if the cop didn't like you, make sure you didn't J-walk. If the cop doesn't like you, don't have him, don't spend him on the sidewalk while he's watching because you're giving him a stick to beat with you're giving him an excuse and he already doesn't like you. So, let's assume that happened here. Why didn't Cooke's writing up at 9.30 in the morning? Why did he wait to 2.30? We don't know. We simply don't know. And that's part of the problem that we raised in terms of causation
. What let's say for the purposes of your question that that all of the prime facet case exists over the purposes of a retaliation claim. But our response here is in the nature of an affirmative defense. And it's one that's rooted in the philosophy of our law that at times, motive or intent doesn't matter if the evidence is sufficient to demonstrate that the wrong for which the individual claim what about language from hell the judge and the witness to you that in this kind of situation discriminatory enforcement may not be okay by. Well, then I think you have a much greater problem in the Watson case. You have a problem with browser v. Horn because if it's read broadly enough to incorporate it says discriminatory. Now, if it's read broadly enough to incorporate any evil motive, including a retaliatory motive, then your opinion in browser v. Horn under which we've been operating for 15 years is wrong because it says that in fact, regardless of the evil motive or in video's motive or retaliatory motive, if in fact, and that's what Carter versus McGrady is based on, rather be warned, if in fact, regardless of the motive, in other words, it's street wisdom that if in the neighborhoods where I am familiar, if the cop didn't like you, make sure you didn't J-walk. If the cop doesn't like you, don't have him, don't spend him on the sidewalk while he's watching because you're giving him a stick to beat with you're giving him an excuse and he already doesn't like you. So, let's assume that happened here. Why didn't Cooke's writing up at 9.30 in the morning? Why did he wait to 2.30? We don't know. We simply don't know. And that's part of the problem that we raised in terms of causation. In some sense, it's kind of a paradox that it happened to say that. The right up at 9.30 in the morning, it can just come and say it's what it would have been, hey, dude, you got an altered or something that we considered to be altered. Officer Klein found it. Maybe we didn't enforce it before, but now we're going to enforce it now. Didn't say that. Nothing. And then later on, things sort of, okay, he wasn't nice to these guys. He probably was a pain in the throes and we're going to write him up. So that fits under what may be deemed to be retaliation. And if we, if I accept that point, your honor, respectfully, my point would be that that retaliation is nullified by the fact that it was an altered radio. You're coming back and then Hill says, but maybe even if it was, that may not be enough because let somebody sort out whether it was really retaliation or it was, hey, I had two reasons. And I have a pretty good reason in both ways. I was a little upset with the guy, but decided it was gray area. I wasn't getting a break
. In some sense, it's kind of a paradox that it happened to say that. The right up at 9.30 in the morning, it can just come and say it's what it would have been, hey, dude, you got an altered or something that we considered to be altered. Officer Klein found it. Maybe we didn't enforce it before, but now we're going to enforce it now. Didn't say that. Nothing. And then later on, things sort of, okay, he wasn't nice to these guys. He probably was a pain in the throes and we're going to write him up. So that fits under what may be deemed to be retaliation. And if we, if I accept that point, your honor, respectfully, my point would be that that retaliation is nullified by the fact that it was an altered radio. You're coming back and then Hill says, but maybe even if it was, that may not be enough because let somebody sort out whether it was really retaliation or it was, hey, I had two reasons. And I have a pretty good reason in both ways. I was a little upset with the guy, but decided it was gray area. I wasn't getting a break. Maybe the jury buys it. I don't know who wins. I just know that these types of cases that some rejudgment deal with issues that I don't think I should be deciding or judges should be deciding. I understand your position, your honor and respected. Our position, nevertheless, must be that in cases even when, in fact, the officers have acted out of a retaliatory motive and responded to a protected activity by visiting an adverse result upon the individual. That in such a circumstance, if in fact there was a justification independent of their motivation, that that justification is an adequate basis to nullify the invidious and retaliatory motive. And therefore, in the realm of criminal law, not just prison regulation. And if it's the law of criminal law, it would seem to necessarily follow that it would work in the administrative realm because the criminal law involving new prosecutions of folks is a more intrusive aspect. Yes. And this, for instance, to conclude is not an atypical deprivation of rights which would justify the implication of, in most instances, prison misconduct is not an atypical deprivation of rights that would even justify the extension of the procedural due process clause. So we're talking about a much less severe restraint on liberty than we are in the sense of a criminal case. But the issue then becomes, if I may conclude just briefly, in line with Judge Ambrose's insights into this matter. The issue then becomes whether or not Watson's account, what he thought was not much wrong with his radio. But nevertheless, something wrong with his radio that wasn't the way it was when you buy it new. So if his account of what was not much wrong with his radio constituted an alteration, and I say it should because we should err on the side of over enforcement, then we have enough to excuse all the imponderables which Judge Ambrose clearly pointed out
. Maybe the jury buys it. I don't know who wins. I just know that these types of cases that some rejudgment deal with issues that I don't think I should be deciding or judges should be deciding. I understand your position, your honor and respected. Our position, nevertheless, must be that in cases even when, in fact, the officers have acted out of a retaliatory motive and responded to a protected activity by visiting an adverse result upon the individual. That in such a circumstance, if in fact there was a justification independent of their motivation, that that justification is an adequate basis to nullify the invidious and retaliatory motive. And therefore, in the realm of criminal law, not just prison regulation. And if it's the law of criminal law, it would seem to necessarily follow that it would work in the administrative realm because the criminal law involving new prosecutions of folks is a more intrusive aspect. Yes. And this, for instance, to conclude is not an atypical deprivation of rights which would justify the implication of, in most instances, prison misconduct is not an atypical deprivation of rights that would even justify the extension of the procedural due process clause. So we're talking about a much less severe restraint on liberty than we are in the sense of a criminal case. But the issue then becomes, if I may conclude just briefly, in line with Judge Ambrose's insights into this matter. The issue then becomes whether or not Watson's account, what he thought was not much wrong with his radio. But nevertheless, something wrong with his radio that wasn't the way it was when you buy it new. So if his account of what was not much wrong with his radio constituted an alteration, and I say it should because we should err on the side of over enforcement, then we have enough to excuse all the imponderables which Judge Ambrose clearly pointed out. Thank you, Judge. Thank you very much. Thank you. Thank you very much. Thank you. There's most of the news here sometime. Your Honor, I would submit that Rouser does leave room for this Court to consider the retaliatory motive because it asks for the same decision defense whether the prison official would have made the same decision for reasons reasonably related to legitimate and penal logical interests. And clearly retaliation is not a reason legitimately related to a penal logical interests. So, you know, there's some room to consider discriminatory retaliatory motive in the Rouser decision itself. And here we're not saying that Mr. Watson should or even will win just that he needs a chance to flesh out these genuine issues of material fact. He had, he was pro-say before the district court, he had somewhat limited discovery ability and he was still able to marshal these genuine issues of material fact that are giving everyone pause here. And summary judgment quite simply shouldn't have been granted on this case. It was, it was done too hastily and without sufficient analysis into whether he was clearly guilty of the prison misconduct here. Simply saying broken, it is against the tenet of Rule 56 that the evidence is to be taken in the light most favorable to the non-moving party
. Thank you, Judge. Thank you very much. Thank you. Thank you very much. Thank you. There's most of the news here sometime. Your Honor, I would submit that Rouser does leave room for this Court to consider the retaliatory motive because it asks for the same decision defense whether the prison official would have made the same decision for reasons reasonably related to legitimate and penal logical interests. And clearly retaliation is not a reason legitimately related to a penal logical interests. So, you know, there's some room to consider discriminatory retaliatory motive in the Rouser decision itself. And here we're not saying that Mr. Watson should or even will win just that he needs a chance to flesh out these genuine issues of material fact. He had, he was pro-say before the district court, he had somewhat limited discovery ability and he was still able to marshal these genuine issues of material fact that are giving everyone pause here. And summary judgment quite simply shouldn't have been granted on this case. It was, it was done too hastily and without sufficient analysis into whether he was clearly guilty of the prison misconduct here. Simply saying broken, it is against the tenet of Rule 56 that the evidence is to be taken in the light most favorable to the non-moving party. It's not only broken, you know, it's semantics but it's different than loose and wiggly and it shows that summary judgment was improperly granted here. Okay, Mr. Watson, thank you very much. Thank you. I also want to thank the firm for taking down the public order of the sentence. We really appreciate that. We couldn't really function to extend the legal function if we didn't have full expulsible to take on these assignments. So thank you very much. Well, thank you for the opportunity. Thank you.
Can you please united these brass and gristle? You can control in by the way. Good morning, Your Honours. May it please the court. My name is Ellen Mossman with Deckard and my co-counsel Ben Barnett and myself were appointed by this court to represent a pellant Joseph Watson, an inmate challenging retaliation at SCI summer set in Pennsylvania. I would like to reserve two minutes for a battle. Okay, you may have without running your solution you may have just used it all. No, no, no. Just a stay-stop now. Just a stay-stop. We ask this court to reverse the district court's grain of summary judgment. I would like today to focus on three points. First, the district court failed entirely to evaluate whether Mr. Watson was actually guilty of the misconduct, including the same decision defense. Second, Jen. Under our case law, why would the court even have to do that? Don't they, isn't the test something that's ill? Whether or not there's any evidence to support the finding of the disciplinary hearing? Well, first of all, Your Honor, Hill was not a prison inmate retaliation case. It was in a different context. And second, even if the district court was only required to evaluate whether some evidence supported the application of the prison policy, the district court didn't do that here because it took the evidence in a light against the non-moving party, Mr. Watson, and by concluding that the radio was broken, when in fact he said that the radio was loose or wiggly. And he admitted it was taped, though, didn't he? He did, but the district court didn't said that the radio was altered because the radio was broken and tape was affixed to it. That sort of confusing the evidence there. Well, I thought he claimed that the guard broke it after it had already been taped. He did claim that. All right. So the taping occurred before the breaking. If we accept this true as we must, his allegation that the guard actually broke the antenna, don't we, nevertheless, have to accept that he himself altered it by taping it before the guard broke it? We do have to accept that he taped the antenna, Your Honor, but we don't have to accept that it was altered because he taped it. And the district court never analyzed. I can't be considered that it was altered, and that he conceded the fact of the tape and customizing it altered, but these were not the regulations. This is 815, encompasses that kind of alteration. He never conceded that it was altered. He conceded that it was taped, and the district court failed to analyze whether taping an antenna with a clear piece of tape constitutes altering an antenna. It had been taped about a roughly a year before? It had been taped more than a year before when he was during, when he was being transferred. And there were numerous inspections during the course of that year and nothing mentioned? That's correct, Your Honor. And he also submitted inmate affidavits who had, you know, who had antennas that were concededly broken. But they didn't open because two of those affidavits, they don't name the name of the CO who took the radio. In bases affidavits, they didn't name the same CO, said that he was disciplined for it, and the disciplinary action was upheld. Well, Your Honor, we would submit that the two affidavits with the unnamed prison guards, it's up to the jury to determine whether or not that matters to whether these affidavits are credible. It can still be some evidence that the prison guards were retaliating against Mr. Watson for his protected conduct. And as to me. And your evidence that they were retaliating as well? I'm sorry? And the evidence that they were retaliating or, I guess I'm focusing mostly on Arbor Secrets. The evidence of retaliation is what? Well, the evidence is that he didn't say, I'm giving you a misconduct because your radio is altered and it constitutes a contraband. He said, I'm giving you a misconduct because you gave my officers a hard time when you were arguing about fixing your radio and requesting agreements for him. And you weren't polite. You weren't polite. And, you know, if the prison had said, I'm giving you a misconduct because of insolence, that would be one thing. But that's not the situation we have here. We have the misconduct being given for an altered radio, and then we have a different reason being given by the officer who appropriates the radio. Are you saying it wasn't an altered radio or it wasn't altered radio and they shouldn't have given them the misconduct because it was based on a territory motor? I'm saying that it wasn't an altered radio to begin with? It wasn't. No, but I'm also saying that if it wasn't, you lose the case. If it wasn't altered radio, I would say that the district court has to analyze whether or not it's an altered radio. If it is altered, yes. It would be the misconduct would be just right. It would be valid. Yes. The law on this of EL motive, right? Isn't this part of the misconduct with the murder? Yeah, that's the same decision defense. If he's clearly guilty, I mean, we would point to the Carter case, you're right, Your Honor, that if he's clearly guilty of the misconduct, no matter whether there was retaliatory motive involved, this is the prison retaliation conduct context. And we recognize that if he was guilty of this misconduct, they would have made the same decision than the officers win. We just don't have that situation here. Turning to temporal proximity, which the appellees raised in their brief, he had engaged in two protected conducts, one of which was requesting a grievance form and the other was filing and prosecuting a lawsuit. And the appellees concede that the misconduct, issuance of the misconduct followed hard on the heels of the request for a grievance form yet still challenge whether or not there's temporal proximity there. We're talking about a period of mere hours. And this evidence is bolstered by Officer Kutz's statement as to why he was being given the misconduct. The insolence and requesting a grievance form, Your Honor, and that to me, to us is enough evidence to survive summary judgment on the position of it. I think it's a footnote that she questioned whether or not that what we tell you, she would write it to the level of conduct necessary to kill somebody's first and then the words. Whether the end of that, but who is why you reaction to it? Whether the issuance of a misconduct is sufficient adverse action. Right. Didn't what happened to you. She's saying she's doubtful. That's enough to show someone's concentration rates. So that would take away the cross-eation issue. You wouldn't have it. And so I'm confused whether you're talking about the protected conduct element or the adverse action. The adverse action is not a sufficient adverse action. Your Honor, first of all, Appellis have conceded that issue by not arguing it before this court. They assumed for the sake of the app, the appellate briefing that at the adverse action element was, was for further. But even so, the issuance of a misconduct is pretty clearly an adverse action. It can have effects such as, you know, change in sell assignment, restriction on privileges, which are very important to the inmate population. And it can also affect their ability for pre-release programs and parole. Because if you have a certain number of misconducts in a certain period, you're not even eligible for, you know, work-release programs, that sort of thing. I mean, this is strictly, I don't see the recent supplies. I would think that a radio with an antenna would be prohibited to consume any of it. And the antenna could make one hell of a weapon. But that's not a problem. The presence of the allow-in-ten is radio antennas? It appears so, Your Honor, and there was something in Appellis brief about how they were considering changing over to tablets. And, you know, quite frankly, that makes sense, but that's not really an issue here, because the radio itself wasn't contraband. And we would submit that, you know, with a loose radio antenna, it is also not contraband. Simply because of the piece of tape, which doesn't actually change the radio antenna in any way, it just makes it more secure. What does it mean to be altered from this original state? Altered means to make different without changing into something else. Is it your own, that's a great weapon, which is dictionary definition. It's right off the top of your head, that's very good. Well, I think that's what the dictionary definition is. Writing dictionary is good. Don't take me word for word, but I believe that's what it is. And, you know, we would submit that when you're putting a clear piece of tape, now I know this is semantics, but if it were a blue piece of tape, we might be in a different state. Why? Because it's not making it into something else. If it's a clear piece of tape, you can see through it. You can see the antenna. It's not, it is exactly the same except something clear. What is my antenna's broken, totally dislodged, and then I put it back together with clear tape? Is that altered? Well, I would say that it is broken, which damage destroyed, also fulfills the contraband, so it might get it to happen. But the antenna doesn't fall off entirely, and it's just hanging there by a thread, and I prop it back up and take it with clear tape, that's not altered. The distinction turned on something that fine is to whether the antenna actually falls off or whether it's hanging by a thread, or... The distinction before this court, I would submit, doesn't turn on this. No, I mean for the prison. For the folks that are trying to regulate whether something's altered or not in the prison context. Are you supposed to define altered based on those sorts of distinction? I don't think that they need to define altered based on how loose it is. I would just submit. So I can't define altered based on, hey, you put a foreign object that doesn't belong on a radio, mainly tape, which gives us some concern, because that might mean that if I just unwind the tape, I've now read a weapon that I could use. Maybe they can decide that, but the real issue here in your honor is that the district court didn't make any inquiry into whether or not it was altered. It said that it was broken, which is clearly contrary to the summary judgment record, and therefore it was altered. Well, if I were to stick in so. The most men on radios, and look at the way broken, what would they find? Broken, I, for a radio antenna, I would say broken is the radio antenna is separated. It's one of those extending radio antennas that has five pieces, and so you can have part of it left, say three parts of the extension, and then have two of them broken off. I would say that that's broken. It would seem that the prison would have a legitimate interest in removing that broken off piece of radio antenna, but that's not the situation we have here. So this isn't really about dictating where the prison needs to draw the lines. It's about dictating that the district court must make some inquiry into whether the inmate is actually guilty of the misconduct. It just can't rubber stamp a prison's determination that the inmate was guilty of the offense, and use that to, you know, to excuse the case of retaliation. Why wouldn't he mention this area? Why wouldn't Carter say you're wrong? Well, Carter has some pretty good language for us, Your Honor. In Carter, the court recited the evidence of his numerous violations of prison policy, which were totally unrelated to his protected conduct, and said that there was a sizable quantum of evidence showing that he was clearly guilty of these prison infractions. And the same sort of analysis just didn't occur here. The court accepted that because it was broken, it was therefore altered, and because it was altered, it was contraband, contraband, and then despite the nonsensical application of the prison policy here. And that's what the made it say it was a nonsensical. Nonsensical. Which would suggest that she thought it was just piece of tape, as opposed to a broken antenna? Well, it's really hard to tell what she thought from the opinion, and, you know, we would just submit that the district court has to do some minimal inquiry into what the evidence supports, and it says broken, which, you know, is different from how he described it as loose and wiggly. How would the most mean to find wiggly? Wiggly is you can move it a little bit, but it doesn't come fully off, same with loose, similar definition. There are also genuine issues of material fact that preclude the application of the defense here. It's not entirely material to whether or not this indecision defensifies, but whether officer Klein broke the radio antenna before, which sort of is in the factual pattern of what happened here. The point is, you know, he allegedly broke this radio, and then the prison confiscated, he officer Klein allegedly broke the radio. So, you know, Mr. Watson was giving the officers a hard time about it, and instead of fixing the radio, they said, no, we're going to penalize you for having this broken radio. And that just, this just needs to have some more, this needs to be flushed out more, I see my time. You had eight officers for a left. You have, what is it, Coots? You have Somasco, you pawned, and who is the fourth one? Snyder, your honor. And who is your, do you think your best cases against? I'm out of time, May I finish? Yes, all right. I would say that the best case is probably against officer Coots, just because of what Mr. Watson says that he said, but Discovery was not fully fleshed out as to the other officers. So, there are certainly good cases that could be developed if this case went to trial. All right, thank you. Thank you. Thank you. Mr. Moecele? Moecele? Moecele, you're welcome. Moecele? Good morning. Good morning, May I please the Court? My name is Kamala, I examine originally. I represent the Appellis in this case. This case has a potential for being considered and resolved as an extremely simple case, regardless of which statement of facts one accepts as to the condition of the radio. It fits the definition of an altered radio or an altered item under the controlling administrative director of the Department of Corrections. But doesn't Carter require that if you're going to rely on that, there has to be clear and overt that you have contraband here? Yes, it does. It requires first the conviction of a misconduct we have. But in order to have something so clear and overt, the testimony was that this was in whatever state it was when Officer Klein did the inspection on the morning at issue. It's been that way for over a year. Yes. No one had any problem with it whatsoever. So it sounds like it wasn't clear and overt violation of any kind of contraband? Well, I would suggest your honor that it sounds like no one had considered or decided to enforce the regulation with respect to that radio assuming, as we must, because we're on review of a motion for summary judgment, that Watson's account of what was wrong with the radio is, in fact, the ruling account. So I would suggest that for the purposes of DCADM 815, having a radio with a loose and wiggly antenna and a piece of tape on it is clearly a violation of that. But if it's so clear what I wasn't called into play during all the prior inspections before. We simply don't know. And it's something along the lines of municipal and state police officers enforcing minor offenses and traffic offenses. Sometimes we can tell from his affidavit that that enforcement varies. I think I can see that's a tactful way of saying they let it go for a while until he became a real pain in the neck and then they decided that's possible. But on the other hand, assuming that that's true, it fits within the philosophy of law. Anyway, for the same reason, an officer in a pose over someone going 75 who gives attitude, gets written up and the other one who's polite doesn't get written up. Correct. But we also have the United States versus Ren. We have Ohio versus Robinette. And we have cases along those lines like Hartman versus Moore, all of which say in felony cases involving arrests or searches that lead to felony arrests, that if in fact there's an attic with justification for a stop, even if it's in fact pretextual, because they want to develop evidence of a greater offense, that the existence of probable cause for that stop or probable cause for that detention or seizure is an attic with basis to even if pretextual. So what we are saying is the moment, if I understand what you're saying about intent, the intent isn't the issue here. But is Monsman conceded as I think she had to if the radio were in fact altered, then there's a violation. Yes. But what is your response to her challenge that the district court erred when it said that the radio was broken? When in fact the pleading from Mr. Watson is that the officer was the one that broke the radio post-hoc? Well, again, it depends on what you mean by broken. I think it's broken under the account that Watson provided of his radio. In other words, if it's loose and wiggly, you put tape on it to secure it in order to make sure that we call it broken instead of loose and wiggly or altered. I mean, are there distinctions between what those words mean and what broken means? Well, I'm following up on a question you asked my learned opponent a little bit earlier, and that is my point is for DC AM-15 to work, it has to be a clear, bright, overly inclusive type of line that they're enforcing because what we're trying to do is to enforce a proper, a prophylactic rule for institutional security, which they've been conceded in its ruling sense without giving away their particular case in this instance. They don't think there's anything wrong with DC AM-815 on a philosophical sense. We all think that prisons can take away items which because they've been broken or altered or changed in some fashion from their ordinary use, present the possibility for breaking prison rules using them as tools, using them as weapons. So we all understand that, and in order for that thing to work well, there should essentially be permitted to be enforced in a somewhat over inclusive way. Any time that there's something wrong with it, any time that it's not in perfect shape, potentially, it's been damaged potentially, anything that's been done to jury rig it is an alteration. So I'm not, I'm saying that they're entitled in this instance. Obviously, if we take clients account of what happened as the hearing examiner did, it's not even an issue. But Watson disputes that account, so we have to go with Watson's evidence. And I'm simply saying that if we take Watson's evidence, we're willing to say that that's adequate to satisfy the court of some evidence standard, that that's adequate to satisfy Carter versus McGrady. And I think we have to say that. And I think if it's not, then we can't prevail on the some evidence standard. Because we're not allowed to use clients. And I think this most distinguished current, because of the nature and severity and the indisputed severity of the violation, that was an issue. That's the truth. I mean, what you've got here is an allegation that the radio was in effect broken or disassembled by officer Klein. And that nothing for a year before had happened. And Watson wasn't happy about it. He just, he told him he was unhappy. He was going to file a grievance, ask for a grievance form. And only then six hours later, after he was purportedly told by officer Coots that, hey, you gave the people's morning a hard time and you weren't going to be in the right place. And that's what I'm going to write you up with, misconduct. And that to me seems like the type of issue that's a material issue of fact that needs to be resolved by a jury. And all too often, we decide things on some rejudgment for the purpose of clearing the deck. But this one needs to be worked out. Maybe he's right. Maybe he's wrong. But on this one, even if it was contraband, the hill case cuts both ways. It was a question asked on this monsoon as to whether he'll make work against you. But also, he'll says that discriminatory enforcement of a statute of ordinance is not just of slide simply because the enforcement is otherwise valid. This is simply the moment the enforcement here was otherwise valid. But then you've got this minor thing, which was going to be left that way, you have an escalate because Coots is upset with Watson. He's upset with Watson's demeanor in the morning. And I don't know the answer, but it's really enough for me to decide. Is it? Is for a jury decide? Well, my response to that is the same response that magistrate Judge Lenahan had in writing the opinion. And that is we can set aside any of the imponderables that relate to the existence of the prime of face case, well, not and simply deal with the fact that if the radio was in this state, assuming Coots had a retaliatory motive and recall that Coots was not the one that actually allegedly broke the radio, nor was Coots the one that said that connected it in any way with his. No, but Coots was the one who decided they're writing. Coots did write the miscarriage. I mean, you've got a three part test here. One was there a constitutional protected activity. You can see that. And as you should, I'm not not arguing. You shouldn't. Second step is was there an adverse action clearly there was because you got it was conduct. And then was there a causal link between the two? And that's the one that you're suggesting doesn't exist. And because of the clear testimony, I mean, but it of Watson that he was written up because it gave people a hard time. Coots said it gave people a hard time. Coots never really denied it and that he wasn't polite. Again, that's not for us to side as a matter of law because there appear to be issues of material fact that are still out there. And he did it resolved by a jury. Permit me to suggest this. I agree. What let's say for the purposes of your question that that all of the prime facet case exists over the purposes of a retaliation claim. But our response here is in the nature of an affirmative defense. And it's one that's rooted in the philosophy of our law that at times, motive or intent doesn't matter if the evidence is sufficient to demonstrate that the wrong for which the individual claim what about language from hell the judge and the witness to you that in this kind of situation discriminatory enforcement may not be okay by. Well, then I think you have a much greater problem in the Watson case. You have a problem with browser v. Horn because if it's read broadly enough to incorporate it says discriminatory. Now, if it's read broadly enough to incorporate any evil motive, including a retaliatory motive, then your opinion in browser v. Horn under which we've been operating for 15 years is wrong because it says that in fact, regardless of the evil motive or in video's motive or retaliatory motive, if in fact, and that's what Carter versus McGrady is based on, rather be warned, if in fact, regardless of the motive, in other words, it's street wisdom that if in the neighborhoods where I am familiar, if the cop didn't like you, make sure you didn't J-walk. If the cop doesn't like you, don't have him, don't spend him on the sidewalk while he's watching because you're giving him a stick to beat with you're giving him an excuse and he already doesn't like you. So, let's assume that happened here. Why didn't Cooke's writing up at 9.30 in the morning? Why did he wait to 2.30? We don't know. We simply don't know. And that's part of the problem that we raised in terms of causation. In some sense, it's kind of a paradox that it happened to say that. The right up at 9.30 in the morning, it can just come and say it's what it would have been, hey, dude, you got an altered or something that we considered to be altered. Officer Klein found it. Maybe we didn't enforce it before, but now we're going to enforce it now. Didn't say that. Nothing. And then later on, things sort of, okay, he wasn't nice to these guys. He probably was a pain in the throes and we're going to write him up. So that fits under what may be deemed to be retaliation. And if we, if I accept that point, your honor, respectfully, my point would be that that retaliation is nullified by the fact that it was an altered radio. You're coming back and then Hill says, but maybe even if it was, that may not be enough because let somebody sort out whether it was really retaliation or it was, hey, I had two reasons. And I have a pretty good reason in both ways. I was a little upset with the guy, but decided it was gray area. I wasn't getting a break. Maybe the jury buys it. I don't know who wins. I just know that these types of cases that some rejudgment deal with issues that I don't think I should be deciding or judges should be deciding. I understand your position, your honor and respected. Our position, nevertheless, must be that in cases even when, in fact, the officers have acted out of a retaliatory motive and responded to a protected activity by visiting an adverse result upon the individual. That in such a circumstance, if in fact there was a justification independent of their motivation, that that justification is an adequate basis to nullify the invidious and retaliatory motive. And therefore, in the realm of criminal law, not just prison regulation. And if it's the law of criminal law, it would seem to necessarily follow that it would work in the administrative realm because the criminal law involving new prosecutions of folks is a more intrusive aspect. Yes. And this, for instance, to conclude is not an atypical deprivation of rights which would justify the implication of, in most instances, prison misconduct is not an atypical deprivation of rights that would even justify the extension of the procedural due process clause. So we're talking about a much less severe restraint on liberty than we are in the sense of a criminal case. But the issue then becomes, if I may conclude just briefly, in line with Judge Ambrose's insights into this matter. The issue then becomes whether or not Watson's account, what he thought was not much wrong with his radio. But nevertheless, something wrong with his radio that wasn't the way it was when you buy it new. So if his account of what was not much wrong with his radio constituted an alteration, and I say it should because we should err on the side of over enforcement, then we have enough to excuse all the imponderables which Judge Ambrose clearly pointed out. Thank you, Judge. Thank you very much. Thank you. Thank you very much. Thank you. There's most of the news here sometime. Your Honor, I would submit that Rouser does leave room for this Court to consider the retaliatory motive because it asks for the same decision defense whether the prison official would have made the same decision for reasons reasonably related to legitimate and penal logical interests. And clearly retaliation is not a reason legitimately related to a penal logical interests. So, you know, there's some room to consider discriminatory retaliatory motive in the Rouser decision itself. And here we're not saying that Mr. Watson should or even will win just that he needs a chance to flesh out these genuine issues of material fact. He had, he was pro-say before the district court, he had somewhat limited discovery ability and he was still able to marshal these genuine issues of material fact that are giving everyone pause here. And summary judgment quite simply shouldn't have been granted on this case. It was, it was done too hastily and without sufficient analysis into whether he was clearly guilty of the prison misconduct here. Simply saying broken, it is against the tenet of Rule 56 that the evidence is to be taken in the light most favorable to the non-moving party. It's not only broken, you know, it's semantics but it's different than loose and wiggly and it shows that summary judgment was improperly granted here. Okay, Mr. Watson, thank you very much. Thank you. I also want to thank the firm for taking down the public order of the sentence. We really appreciate that. We couldn't really function to extend the legal function if we didn't have full expulsible to take on these assignments. So thank you very much. Well, thank you for the opportunity. Thank you