back good morning what am i need to spell of years i'm an attorney for my city i have for many years had the distinction of being able to appear in front of the eighth circuit in most of those occasions representing prisoners in the state  river that are critical to your finding in our paper a little bit about the gun slightly unusual procedural history in this case mr martin filed a pro se complaint with the southern district of iowa after he had been denied parole even with this is a parole granting case as opposed to a parole preachin case that prior to anything else i was appointed to represent him  that that and before were there was an opportunity to amend the complaint or anything the state or the defendants filed a motion to dismiss raising a whole bunch of different issues including mr martin's failure to exhaust his board of parole administrative remedies that rather then try to redraft the complaint at that point and address the myriad of parts of the motion to dismiss  ago raising a somewhat similar issue and that we thought that the soft issue might in fact be dispositive not that it was correctly decided but it might be dispositive in this particular case that consequently we agreed to that but i think the court will you mentioned a number of different things first of all as to movements i think that that was addressed on appeal because mr martin discharged his sentence and then down that's we there's an order i believe we've dismiss that so so well right but you retain the portion of the case regarding damages well most of the but the but the argument is it's in that it doesn't get off the ground because it's part by sovereign immunity and you didn't file a reply brief understandably so what's your response to that this morning well i think that the claim with regard to move this in sovereign immunity was was we addressed that in the response to that motion to dismiss on appeal go to address the eleventh amendment state i'm sorry not if it's the state what are they sued in their individual capacity we never was given to you never were given an opportunity that is that that mr martin filed the pro se complaint and we acknowledge that he did not know wouldn't survive he hasn't named the right party sure but that we would be ever really we would have done that amended complaint had to use option question have been addressed on the magistrate judge denied the exhaustion defense the district court and ruled on the merits and then proceeded to the district court correct and then the magistrate judge reached the marriage then there was plenty of opportunity to assert whatever claims should have been asserted or needed to be asserted before the case reached the district court and the press and we filed objections to the reported recommendation primarily pointing out that we had never been given an opportunity to address the m and that they had and in fact judge prisoner acknowledged that his theory order was going to allow us to proceed if we were successful i counsel and if i understand what you're asking us for your you agree that as constituted at this moment you know the lead up to minute mars us from doing anything and counsel the bar even nominal damages it bars any kind of damages i liked yeah and so that the case would have to be remade correct correct well not reminded we we   in this case and the question is can you refile another case individually gets the prolife six right see i think you're asking us for advisory opinion whether you can file another case that in this particular case the case was dismissed for failure to exhaust if that's incorrect then the matter goes back to the district court seems to be in order to allow the case to proceed as if they had preceded two or three years ago at which point the rest of the balance of the motion to dismiss is on the table and that we would be permitted to amend the complaint at that point i mean that is that this was all there do you know there were plenty of of grounds for the motion to dismiss including that it was not properly filed the proper parties were not filed i don't i don't disagree with that but the method that was chosen to present this procedurally to the court and agreed upon by judge criticism was that we would first deal with the that the exhaustion question and then if we survive the exhaustion then we would be permitted to amend the complaint and address the property we have a final judgment then in the district court in your opinion oh certainly you have a dismiss in this case was clearly dismissed for boots off and the only thing surviving at this appeal in light of this court's earlier order his case is damages right correct percy and damages should should judge give damages against because mr martin wasn't permitted to amend his complaint get that to him again the point i was trying to make is that there is a final judgment because mr martin was this i might have to that definition that it relied on is the definition that came out of the portion of the people already dealing with appropriate remedies for prison conditions that that particular wilkinson versus datsun supreme court decision from two thousand and five has any court ever addressed your distinction between the parole process that the parole process is somehow not prison officials and therefore is not what they do with the parole commissioners do is not prison conditions as any appellate court addressed that in the standpoint of of the of the exhaustion you just actually change your question your first question was it has the court addressed it and then you said in the appellate court in my state we did point out to the court that there have been three or four district court decisions in the last six years that have drawn that distinction i m the the cases there are four of them and they are cited in my brief no i'm with you ok but i don't think they are pretty they are they are challenges to prove to the parole granting process and that they may or may not been brought well i frankly don't see any difference in real terms between whether they're allowing internet proper high quality interpreters costantino says are institutional programs that bear on eligibility for parole that was part of the holding of stuff i don't see a difference between the quality of the interpreters and whether there is a i just read our opinion in instead you know programs that bear on eligibility for parole that's right but their prison programs that they are on parole eligibility the interpreters were in the prison ok so but you parole board i'm sorry the into that the prison officials were the ones in charge of either hiring or not hiring interpreters in the prison doesn't your on tire argument turn on whether parole commissioners are prison officials it's another way of looking at it well how about council better yet are they government officials the word in the statute as a government official effect of actions by government officials doesn't turn on whether pro officers are government officials so i don't think there's really any question about the big wilkinson these people can be sued under nine hundred eighty three the question is whether this this is a suit about prison conditions counsel you keep reading the first section i you know as i keep reading the second prison conditions in there are no more affects of actions by government officials on lives of persons so what i mean that's not the exhaustion problem but but that does suggest however there is a kind of prisoner complaint that can be presented under one nine hundred eighty three that doesn't have anything to do with what happens in the prison it has something to do with what happens down the block at the border parole an entirely different administrative proceeding and it's not about prison conditions if you were allowed to repleat why why would to the point bar bar mr martin because he has been fully through the state system as i understand it he's now exhausted it was an entirely different parole hearing one thing that i thought i thought this core ultimately determines or gets past the jurisdictional question that was raised by the panel here i think this case raises one simple question can members of a state board of parole have an effect on the lives of persons confined in a prison and if the answer is yes then will you martin's case that he brought under u s c of forty two section one thousand nine hundred three challenging those conditions is a simple action with respect to prison conditions for which the prison litigation reform act would bar him from going forward unless he is exhausted all available in ministry or right before you get too far down the road coun you better address the wilkinson case because really what your opponent is saying is the wilkinson case says that several cases bar court are really wrong castano owens versus roberts than even even i think the this court's earlier had to be brought under the hevia statute twenty two fifty four are if it could be brought pursuant to section nine hundred eighty three and the court ultimately ruled that as long as you were challenging the factor duration of case now in this case what mr martin is challenging is the procedures used by the parole board term and whether or not this is an eligible candidate for for release and so i believe that will get some services datsun reach the conclusion that you can challenge the procedures that a board uses or one of my getting my reviews in a tongue fashion and mind being interviewed those sorts of things i believe the supreme court has found is is  eligible to be brought under section one thousand nine hundred three but if ultimately the question is should i be out on parole now are should i be out on parole yesterday that would be a matter that should be brought in hey be assembled and i don't believe media just charge you know there's this court ruled ruled out the question of injunctive relief and prospect of declaratory relief so you're stuck with the only thing he could possibly receive through this action is damages and i think you have to look at this case in its current form to see who it is he's doing he's suing the state of by what he's suing the border patrol and these are individuals that under the eleventh amendment one probably can't be sued in federal court and they sure can't be sued  that in that particular circumstance and i did raise that and in my motion to dismiss that these are not persons within the meaning of the act i know that the summit on case address that that i believe he does need to refile which leaves any minute church and situation because more than two years have passed since the purported illegality occurred in this case and so he'd be barred by the statute of limitations not to mention i would argue that that judicial review finding in the polk county district court in des moines there does have to the fact as to whether or not his constitutional rights have somehow been injured in this matter and that he did raise reasons cited in my brief i'm i'm with don't posit that that he's not that there simply is no no basis for requiring that he be given a poor old interview especially given this court's ruling in the supplanted but if it still if it's still alive and well in that regard well i'd think you'd take a look at both green holes and the alan case from montana in which the supreme court at that time was focusing on the language that a parole every annual review the up of the way that the statute reads is that if in the board's determination for a while as if they believe that this person can lead a modern life then they shall release what does it say shall go in front of the annual interview or there is no statute that gives the annual how about a regulation of them or the regulation provides that they will review him and usually it does not say that they will be interviewed and you know that the statute gives the board discretion to determine how it will go about conducting that annual review and they do so on paper after they've given the inmate an opportunity to point about the watering down of the show we used to read that talismanic lee we don't anymore i would but help me on what the words say i bet you know those the  interviews here the border me interview an inmate committed to the coast of the department so the interview interview phrase has the main unit and the old tattles many days write it in our administrative rules the statute that purportedly create a method to systematically review each inmate and so that's and then they shall establish by rule when they would interview people and so today their rule talks about the fact that they may do so  protected liberty interest have been leaving someone in prison who'd never even been insofar as the work release somehow impose some sort of significant or hardship on them that's different or a typical of the district court as well as in front of this court you know it would serve judicial economy to missions you don't have you rule but given the weird or strange procedural posture that we're in here i think fairness probably would dictate that you question and there is one and i'm granted it's a panel decision that's not imported from the eighth circuit here in the owens matter that is the exact same argument that was raised both before the district court and the court of appeals not granted it's a one paragraph government officials which is what the definition of prison our action in regards to prison conditions entails i don't believe anything that the supreme court or talked about didn't discuss of the prison litigation reform act at all and i didn't talk about exhaustion i don't believe it was an issue in that case and therefore the court didn't need to bring that up but for the reasons cited in my time before and i'm not sure giving a minute this at all given how many things really quick wilkinson that that wilkinson followed wilkinson state prisoners were allowed to use k b s but they couldn't bring it in one thousand nine hundred three if they were trying to invalidate the duration of their confine their what they decided in book consent was that was a kind of maybe eighty three case where you were complaining about the procedures that were used in determining the duration of your confinement but did not necessarily imply the invalid in the validity invalidity of their conviction sentence and therefore confined and that was permitted creating a centrally in my opinion a third kind of prisoner complaint under nine hundred eighty three that was that was not as opposed to the earlier kids from this court and not from any annual review our position is that if due process apply us then you ought to be able to get an interview at the bare minimum that is that you can't you can't given their ordinary plain meaning