Bretches v. Kirkland

Filing 115

Notice of Questions for Hearing. Signed by Judge Jeffrey S. White on 4/18/11. (jjoS, COURT STAFF) (Filed on 4/18/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DALE BRETCHES,

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v.

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For the Northern District of California

United States District Court

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No. C 06-05277 JSW

Plaintiff,

RICHARD KIRKLAND,

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Defendant.

NOTICE OF QUESTIONS FOR
HEARING
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

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NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

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APRIL 22, 2011 AT 9:00 A.M.:

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The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

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reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

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cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

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authorities reasonably in advance of the hearing and to make copies available at the hearing. If

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the parties submit such additional authorities, they are ORDERED to submit the citations to the

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authorities only, with reference to pin cites and without argument or additional briefing. Cf.

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N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

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explain their reliance on such authority. The Court suggests that associates or of counsel

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attorneys who are working on this case be permitted to address some or all of the Court’s

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questions contained herein.

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The parties shall each have 20 minutes to address the following questions:

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1.

In its order reversing dismissal, the Ninth Circuit, based on substantially the same
evidence now before this Court, found that “Bretches’s complaint and its supporting
documents demonstrate that the prison officials’ decision to ban Bretches from
publishing his book was intermingled with their determination that the content of his
work was unsuitable.” 335 Fed. Appx. 675, 677 (9th Cir. 2009). On what basis may
this Court, based on the same administrative record, find that the prison’s ban was not
intermingled with content determination?

2.

Is it possible, drawing all inferences in Bretches’s favor, for a reasonable jury to
conclude that the ban based on operating an unauthorized business was merely pretext
for unlawful content-based suppression of expression? Even if there were valid reasons
for the ban, could a jury find, based on the record, that the book was actually banned
because of its content? How is the Hawkes memorandum dated June 21, 2005, which
explicitly addresses the veracity of Bretches’s account, not an unlawful content-based
determination where the disputed content poses no threat to the stated legitimate
penological interest? See McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987) (holding
that while some content regulation is permissible in the prison context, the court must
weigh whether the disputed literature actually advocated violence or illegal activity).

3.

Beside the David Chance matter in which the banning of an Aryan Brother member’s
joke book was clearly not based on content, are there any other Pelican Bay State Prison
decisions banning publication that were disclosed during discovery? What was the
scope and content of discovery conducted in this matter?

4.

Defendants move to dismiss Bretches’s substantive due process claim under the Fifth
and Fourteenth Amendments. On what basis does Bretches contend that the prison
officials’ conduct shocked the conscience or deprived him of life, liberty or a protected
property interest? What facts in the record and legal authority support Bretches’s
contention that he has a protected property interest in earning money from his
publication while in prison (see Second Amended Complaint at ¶ 46)?

5.

Bretches has not formally requested a hearing before prison officials regarding whether
he can publish or profit from the proposed revised edition of his book. Is the second
edition only at issue in this matter insofar as it provides a possible alternative means of
exercising his right to free speech? See Turner v. Safley, 482 U.S. 78, 89-90 (1987).
Does the unexhausted request to publish the second edition in briefing of this matter
moot out the pending review of the first edition?

6.

Do the parties have anything further they wish to address?

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.
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Dated: April 18, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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