not i'd like to move straight to the merits of mr is because due process and eighth amendment claims my only question about that motion is what you think your best evidence is that he is in some imminent danger of physical injury as required to get over the the three strikes and you're out rule your not miss is the did not plead in his complaint or inform the district court that he was in imminent threat of physical injury however i would say two things to that fussily for the reasons that we argued in off raef we believe that this is a discretionary decision the court can make and could determine in light of federal rule of appellate procedure three but the appropriate remedy here would be discretionary decision the state had every reason to know this and could have brought it up since two thousand and twelve when this case was was initiated missed it is because raising very serious due process and ate the memo and challenges to his over a decade long solitary confinement and given those few facts you want to we believe it appropriate for the court to exercise its discretion and reach the merits of this case and we did cite one case in off briefing of yesterday got in the tenth socket where the court did reach the merits of an already briefed appeal despite the presence of a nine hundred fifteen chief by ok so let me tell you one of my thoughts about your your fundamental due process argument i think i seems to me unfair to the record to say that that's the only process that he's getting because at least since two thousand and fourteen now shockingly more than two years ago they've also been coming to him and offering him in a sense more process they've been saying you know if you go through these programs will transfer you to newcastle or you know your chances will be much better they they've been offering him all sorts of additional opportunities and he spurns all of them so i think it's a little myopic to say that the only thing he's getting is the thirty days  to the new call facility however the state is never all accused that any one of those programs would lead to his being released from solitary confinement the standard that they apply is a multi factor discretionary one and if you look at page six of the state's brief they note that there are individuals who have been released from solitary confinement without participating in the programs and individuals who have orchestrated you have a no i understand that's true especially for the a c t in the m r team but the newcastle  it's a different place is not the special confinement union unit i don't know what the conditions are like at newcastle but one would assume maybe not quite so dire as they are in the special confinement unit you're on there was a testimony there was a there were openings to his cooperation that would have resulted in his being released and she did that based on testimony by government officials a trial so i mean whatever there may be in terms of offering she found that that's the reason why he is still where he is you're on up with respect i don't think the state is arguing that simply if mr is be had participated in those programs he would definitely be released indiana policy is multi factor it but again the state hasn't even said this to mr is between any one official communication over ten years but how could the state slackly commit to move him before he starts either the a c t or the or whatever other kind of program not knowing how it's going to go i mean he's got a history of not being interested in cooperating with a lot of things but they might be saying well you know he successfully completes them a big if  then he is in good shape and they do seem to be worried about the increasing duration of his time in solitary and you know i certainly take your point that that's pretty awful way to live your life but that he's making it so hard for them to move him your own up i don't think the state has to commit to releasing can guarantee to finish these programs or keep begins the programs but what i do think due process requires is in the communications it makes to missed is be to give him some explanation for his continued confinement for why isn't the explanation you're not doing these programs what you want to that is the explanation that has come out through litigation in the statements made to be over a decade it is true for laplace statements your status is not recommended to be changed but i don't know you know it's not true and they're on the record he was regularly being told by the people who are working with him that he needed to pass his programs t show he has some control if you're saying that it's a violation of due process because that wasn't put in writing is that necessary where we know factually what he was told well you're one of the  statements that were made to him by caseworkers the people he interviewed with were different than the actual review proceeding that the prison itself puts in place to evaluate individuals in long term solitary confinement and when a prison puts such a proceeding in place i think my understanding of the ninety day hearings is that he would not necessarily have to be present at the hearing when you have to be there was my understanding it's not in the record understood so i think that the reason the state has to give more than two statements and now in litigation this case has been pending since two thousand and twelve if it takes an inmate to bring the civil rights you in order to get an explanation through trial testimony i don't think that's even what the indiana procedure provides for what the state is required to do is to is be some explanation because otherwise there really is no boundary on the state's decision making process and evidence that it is engaging in reasoned decision making this matter if if the state regularly  would you think that was sufficient you're not i think it would be a different case i think then the state would at least be in a position to plausibly argue that they've given mr is speech some guy perfusion behavior and that they are showing their own reasoning recent decision making so that's why i want to get back to my original question if not if i agree with you which i think i do that the statements in the thirty day reviews are boilerplate perfunctory nonna lumen ating can't really tell how much new evidence they're taking into account etc i'm having trouble understanding why the federal constitution requires the state to incorporate everything it knows in these thirty day statements if it's providing some flow of that comes out through a federal civil rights trial is not i think what due process requires to inform an inmate about what the conditions of confinement he's suffering are and why he is suffering that i think that the state would not need to give mr is  an extensive multi page detailed footnoted analysis of why he's in solitary confinement but i think the cases that we cite in a brief do stand for the proposition that while certainly the prisoner has discretion that may be significant discretion involved in a fight with another inmate ninety days segregation every thirty days they have to hold and issue a formal explanation for why they're not releasing that person early  no there's no documentation of those others there's some evidence that there were two more requests correct the district found there was a disputed issue of material fact on whether the subsequent requests to be made and whether they be for your gree district found it unnecessary so i don't represent to the court that i think that does comply with due process but i think it's a different scenario but the second thing i want cinnamon you think is required for due process your not i think the minimum that is required for an inmate who like due process requirements like is it one thing if it's three months or six months and then more due process once it's dragged on for years and even more due process once it's ten years or or is it a constant moved six days off to inciting a violent prison riot and i think that obviously when you look at the situation it would be absolutely elevating form over substance to say well you want adjudicated to have done a prison right nonetheless he had a full dress hearing as to whether you can be moved solitary here the evidence which was introduced at trial was that missed is b was initially moved to solitary in two thousand and six based on incidents that happened in one nine hundred ninety you can see that if you look at pages forty eight of the trial transcript which is  then three more for the next eight years and in other words it wasn't like he did one bad thing in one nine hundred ninety and was a model inmate up until two thousand and six no you're on up i think that is a correct reading of the fact record but i would also note that from two thousand judgment for three reasons first the thirty day review lisa visit be placement comply with the teachings of hewitt shuttle and what this court's decision was defer to let's let's stop right there because those thirty day reviews troubled me quite a bit because the factual circumstances as mr babbitt just said are quite different when somebody is in a very extended let's just say greater than a year or a very extended period in something like the special confinement unit and the notion of two things bother me about it one is the m b q already about one's ability to introduce additional information into the calculus because course as time goes by behavior may be good it may be bad but it seems to me it's highly relevant and the lack of any opportunity for the prisoner to assumption that these thirty day quick looks were were the end of the discussion well your honor i i think viewing them as just a quick books the is the incorrect way to look at them the people conducting the reviews especially tulum mr snyder the unit team manager and then miss gilmore the casework manager are interacting with this be on a continual basis mr is b does not have the formal hearing that he comes to appear at but he is giving his input through his actions through those thirty days but he's not told as the tenth circuit was talking about you know if you want to get out of the special confinement unit there's a path this is what it is and it's not it's on you now you have to decide to do this he's never told that until this litigation i underway which is i mean i hate the thought that you know the state won't do anything until there's a lawsuit against it makes it a little suspect in my view anyhow so so this you know we're not letting you out now but here's the path are a danger to others and smith versa shuttle forever for seventeen years until they do something to prove that they are no longer a danger it happened but that's like a mysterious reminds me of the castle you know  for the offender to know this is how i got here i know why i got here i need to change so i but that's so getting you know just it means that he's got to stop speaking rudely to people to sit mean that when he sticks his hand through the you know the little slot for food trays he can't wave it around not like he's going to hit anybody when he's behind the door does it mean he has to do the ac or the m r t program  is there any passing score that he knows he has to earn in order to move to the next layer down of security he doesn't know any of that i didn't write a part of the problem is that this is not a purely objective inquiry this is not like a wolf situation where this is all about objective fact finding what happened in the past but you surely are not arguing that it can be just capriciously decided by the department of correction people oh we've just decided to leave is be in the i c u for the rest of his life no we don't like the guy he's annoying you know so that's where he's going to stay no that's not what we're suggesting and i would point out that the state really does want people in the long term segregation the state has incentive to move these people out this is a very resource intensive operation it's very stressful for the  guards if there are a lot of resources put in to us making sure that the offender's constitutional rights are here to the m r t the programs are provided but it's also stressful for the inmates and i guess i have to wonder how a person any person in light of literature kept for ten years in an eight by ten or whatever it is sell a square foot cell so he's rude and uncooperative it seems to me that it's not surprising that somebody has behavior issues when they don't have any human contact or at least that they're not going to get any better yet or those circumstances in print and likely to get worse well that that's what the programs are there for what you do is someone who's not willing to do the programs which clearly this column is not to read is that enough to just say that  isolation i think some other supreme court decisions may suggest that is enough but i'm more concerned about what it what our obligation is when we're supposed to ensure meaningful procedural review and we don't know what procedural review is occurring i can't tell from this record and i'm not sure that judge magnus stinson was able t other than she accepted the proposition that every thirty days there is a review but what's our obligation and after us the wilkinson i think the answer is it's high it's a heightened obligation it's a mega fight obligation when someone is in isolation for an indefinite period of time so what in this record lets us decide yes there is meaningful procedural review occurring i think t makeup of the review team and the fact that they're the people who will interact with this be on a daily basis i think the ninety day reviews and you know we can't we don't know what's happening on the record is was deliberately left undeveloped on that point because the district court judge thought that the thirty day reviews made that a non material fact that if we were to disagree with her i just don't see how you can bring the ninety day process in at all  there were two and two thousand and eleven there's no evidence preceding two thousand and ten because of limitations period and there's no evidence since the summary judgment was granted two thousand and thirteen so there were two since two thousand and eleven when there's no presume you would be free to cite that it was if there were certain things we did they take notes after these interviews do we have any indication on the record of i'm assuming some frequency of contact because he has access to talking to these people on a regular basis whatever regular means i don't know whether it's daily or weekly but sometime during the thirty or ninety day period do just the records speak in any way to notes taken even if they and those notes are taken there's also reference in the record and i think as mr snyder testified that the staff takes notes when mysteries be x up and puts it in an internal case management system and that's something that they reference during the thirty in the ninety day previews they show there's no opportunity to present his you of whatever these act up incidents are right i mean they can put in anything they want  i guess if he could dispute them at the ninety day if you get said but for the career because of the duty to say you know i had a bad headache that day claims he has these migraines i know so so just additional context sometimes can make an incident seem different i don't know i don't i don't know how that would make it seem different because i mean if he thinks rudely to somebody and they think he's just being obstreperous that's one thing if he says you know i was actually really feeling sick that day and a bad headache yes i may have spoken sharply but i certainly didn't mean anything by it but your honor that that is it's it's his is one of our frequent filers and they don't worry we know it and i think the kind of report has shown his input if he has a short fuse and when that fuse is lit it results in extreme violence and these outbursts he may want to give context will and i do i am confident he would try nothing is ever mysterious because fault he in his testimony is that a factual finding from the eighth and then i thought the eighth amendment bench trial that you please correct me if i'm wrong was about the conditions of his confinement and the judge concludes that none of the things he's complaining about the food the laundry the temperature in the cells the whatever else he was complaining about none of those violated his eighth amendment rights yeah i didn't think that there were findings of fact i thought the rest of this was summary judgment where we were taking the walker versus chance the decision point out that when you're investigating or examining long term segregation you take into account feasible alternatives and judge magnet stenson said i do find there is a feasible alternative here it's a newcastle transition unit but he is steadfastly refuse to participate in any programs including that one and judge sense and i think also found as a fact that the deal sees concerns about s dangerousness if he were to be dropped in the middle general population without any sort of transition aren't on reasonable and light of his his history i don't i will say that on the due process issue that the relief minister is b c it granted i think that if the court were to disagree with the district court on summary judgment issue would have to be remanded to think that's generally considered by both sides that there would have to be or a man to look into the ninety day option which might fix the problem right there right but i also think that mr as we raise the in his brief that qualified immunity wouldn't apply but the thirty day reviews were approved in shuttle smith doesn't say anything about requiring any particular sort of written statement but i wouldn't prevent every man for potential injunctive relief precisely it would prevent a remain for potential injunctive relief but on the injunctive relief mr is because also seeking release directly in the general population and i think that wouldn't be properly tailored relief i and segregation the thing that makes sense given the psychological impact prolonged deprivation of human contact i don't know that that does make sense for this reason these sorts of decisions are made under the green hewett sort of analysis greenwald says about discretionary parolees and i don't know of any case law from the supreme court of this court or any circuit courts that say you know the fourth time you you mean the thirty day the marriage day yes our position is the thirty day there's not a written statement that that says anything other than the boilerplate that's not disputed for the thirty day so it's completely on informative from his point of view that what they're thinking that he doesn't and in fairness they may well be telling him independently but at some point don't we have an obligation to know what is happening i mean we need a more record to determine whether this is really meaningful review yet potentially i still think that the makeup of the review team it perhaps thinking abstractly it could have been better but in the matthews or says alters calculus you're also having to consider the utility of the additional procedures and here was the utility of written statement is judged long pointed out earlier if we gave a written statement that said you're still here because you're still a danger may finish please and we'd be back here arguing the same things say i'm getting the same thing every month it's not meaningful and so i don't think that that necessarily you're honest from two thousand and nine to two thousand and fourteen mr is be had no incidents and then the two thousand and fourteen incident is described in the book the state now says because he has not participated in these programs it's an absolute bottom being released from solitary confinement they say that through litigation if in fact they had conducted a process and said dr mist is bieber twenty other inmate you've been in solitary for five years there will be no incidents but nonetheless because you're not participating in these two programs we're not going to ninety day review that has meaning exactly your own up but i don't think the stay there finish my sleaze i don't think the state can hide behind a boilerplate not specific explanation which gives an inmate no ability to challenge it and then through litigation come