the district court dismissed this case to a spontaneous in the face of thirty years of precedent holding that a probationary cannot be re imprisoned for invoking the fifth amendment this court need look no further than minnesota b murphy and judge mchugh ins opinion in united states versus antelope to confirm that reversal is required the state of oregon and klamath county labor to defend the dismissal but they've ignored the elephant in the room that being that mr chavez was compelled to admit guilt while his appeal was pen the county further suggests that it's at mit or go to jail approach to treatment is perfectly constitutional is a sure sign that the county will continue to violate the rights of the offenders with pending appeals counsel can you help me with that procedural issue as i understand it neither of the individuals have ever been served with the summons and complaint in this action right that's correct and the county is participating as  so there's basically i guess nobody appearing on behalf of the individual defendant that's correct your honor i would point out that there is an oregon statute that specifically requires the climate county to appear and send  the thrust of your case at this stage is that it should have been thrown out on the judge's screening in the prison litigation reform act yes your honor that the thrust is really twofold first that the case should not have been dismissed at the screening stage but we are also stuck with a ruling on the merits case was dismissed with prejudice so we need to address that as well  i'm still hung up a little bit on the procedural question here what started this was the district court issued an order to show cause why the case should not be dismissed for failure to prosecute yeah your honor but i didn't see any indication in the court's order that that was the basis for the court's ruling instead it looked to me like the district court engaged in one hundred fifteen screening and assessed as best it could the merits of the argument and decided that the immunity qualified immunity would apply and therefore the case wasn't going anywhere is that improper under nine hundred fifty first of all you're correct your honor in that it was some unity and your view is that it would need to say qualified immunity in order to dismiss at that stage you know our position is that the word immunity that the plain language of the statute refers to absolute immunity which can be easily determined from the face of the complaint for example is it isn't it more common that what we talk about is official immunity and there is absolute immunity in this model item unity and if and the statute doesn't make a distinction right it could be argued your honor that the statute applies all forms of immunity and it perhaps is ambiguous in that regard and if if the court were to conclude that the statute is ambiguous would of course result to rules of construction the first being that you can't construe the statute in a way that would lead to an absurd result and there i'm not sure it would be absurd i suspect you know this that the majority of lawsuits that are screened out under one hundred fifteen are qualified immunity so there are usually civil rights actions by prisoners seek to hold some public official often correctional officers liable for a violation of their civil rights so i think it's going to come as a huge surprise to the district judges in this circuit if we publish an opinion that says no that reference in the statute means only absolute immunity and i'm not sure other than maybe judges whether there are very many other examples that maybe eleventh immunity of states but beyond that it's a pretty narrow call board  limited number of absolute immunity cases i agree and yes the majority of cases in which to inform a pop or statute plies are cases in which qualified immunity might be available as an affirmative defense but i guess you're asking us to interpret congressional intent in enacting section one hundred fifteen as if congress wasn't aware that the typical prisoner pro se civil rights case is going to be seeking the intent of the statute with respect to this particular language is to screen out complaints that are destined to fail that wouldn't be worth anyone's time to serve on the defendants at the court's expense and that's what the court thought it was doing exception to the normal rule under twelve b six in other civil cases that you know we only dismiss if there is you know standards are met yes and perhaps i need to bac i think the starting point for this analysis is gomez the to lido and crawford i'll be britain both of those cases squarely hold that the burden of pleading qualified immunity which of course an affirmative defense rests with the defendant the plaintiff is not required to that says that i have a constitutional right to paint all the city streets red so the district court takes a look at  it and then you know i start doing it in the cities and i can't do that so we've got some state action there and i have an individual person that tells me i can't do that and maybe they want to give me a citation or whatever so the judge looks at them says that there's there's no established constitutional right anywhere in the statutes that would say you have a constitutional right to paint city streets red so even if you do have a right it's certainly not a stablished and under the way we do qualified immunity that's a suit that ought not go forward that's a not a lot different than the judge looking under a cause of action and saying well there's five points you need to this certain cause of action in and you've only got three and so i'm going this route out so what's the difference in terms of what's being done it doesn't it's not a question of the the plaintiff having to plead around anything it's a question it's a legal question precisely on and it is a legal question and i don't your example it's a relatively clear cut and that's really the exception to the rule qualified immunity is this court knows this is very complicated analysis when you're performing a legal analysis of what the state of the case law was at the time that the right was alleged to have been committed and as evidenced by this case this can be misinterpreted well maybe maybe the district judge will be wrong and then what's the needing to make it a lot different to make a constitutional judgment of whether or not a law is clearly established to whether certain elements of the claim are there or whether you missed an element of a constitutional claim or you forgot to allege parties to the case we're certainly not saying that the district court could not sue a spontaneous qualified immunity after the defense have been served that would be perfectly acceptable we're talking about this narrow very beginning of the case that the case is being dismissed in some respects it's akin to what we do with the certificate of appeal abilities days when a view is petitioner comes to us and says i want permission to file a hey b s action we have to make a preliminary assessment of the nature of the claim based on whatever is before us in deciding whether jurists a reason you know might to agree that there's a case here in order to you know sufficient to encourage it to proceed and that's  essentially what the district courts are asked to do under one hundred fifteen are they not i agree your honor i think it's a little bit lower standard again we're talking about screening this is a very blunt object just trying to weed out the cases that are  clearly going nowhere they're destined to fail and there might be and you know one question i have is that immunity whether it's absolute of qualified is not a normal defense it's basically an immunity from suit contract that's correct and so whether it's absolute a qualified it doesn't really stand on a different footing i agree ron inch in terms of the fact that both are affirmative defenses but qualified immunity is a very well your honor our position is that the the complaint stands on its own it's been satisfied without any additional facts required but yes the the district court certainly could have given an opportunity to amend then that would have been appropriate at least have a notice an opportunity to respond listed a simple citation two united states versus an a loaf and minnesota b murphy i mean that's i think plenty to satisfy the screening portion and to survive a motion to dismiss conflict do you agree with the district  characterization of your client's response to the order to show cause as treating it as an amended going no i do not your honor so you're relying entirely on the original complaint that you file the original complaint and the a dent there to i'm not sure i understand the import of the answer you can consider both but we're relying on the original complaint yes your honor the original complaint and the agenda i mean part of the problem as you know is that if you're treated as an amended complaint then  i guess the probation or community corrections officer who falls out of the case because she's not listed as a defendant in the caption interior however the district court dismissed the claims against the probation officer ms more  on the merits with prejudice so i thought it was all yes but i thought it was in the alternative other words that first i find she's not listed therefore you don't have a claim but even if i was given she is then she's immune well that's correct but i think if the shoe were on the other foot and m court i mean mr chavez did file some material with the district court clerk indicating that he'd completed service but it sounds to me like that actually wasn't true i think that it might not have been proper service your honor however it's the district court's responsibility under section one hundred fifteen v to ensure that services properly can complete it through the u s marshals service with his affirmative representation that service had been completed i responsibility to do so well i'm not so sure i mean the order to show cause basically was look this case has been pending on my docket for almost two years you know where are we and frankly your client's response was not responsive to the district court's order to show cause instead what he got was something i'm not sure you don't want to characterize this record as an amended complaint but that's one way you could look at it it could be construed that way your hon but considering in that fashion is contrary to the rules that apply to print and to pro se complaints that need to be construed liberally and with the benefit of in every doubt even to the point thank you it doesn't address the two year delay in the prosecution of the lawsuit and i agree on and that's the only reasonable interpretation is that it says tort claim with money damages names a new party which is what of illegible claim against i guess the state court for not granting his stays and then finally the fifth amendment one that he alleges so to answer a couple of the questions and i think you know i mean in fairness to the well that's confusing because that's not what the if if if it's non responsive to what the district court said then it's non responsive but it's not necessarily amended playing well your honor except that it does add a new party and new claims which is  complaint except that mr shab is in his filing says my prior filing may be considered as an exhibit or something of evidence of abuse or something to that effect as if he's abandoning those but here's additional evidence to support the current claims i'm bringing and that's the difference i think with his subsequent filing but neither individual was served there's no evidence in the record that they've been served and that's  originally i agree with judge tallman that there is an obligation under one hundred fifteen if it's an informal part of paris filing and it was accepted that the court has to assist in that but i don't think that duty extends to when you make the other filings he indicated a second time that they had been served and it was a different date but you're right in and that's evidence that they never had been properly served because it was in his letter to the court giving  additional finally counsel it was more a county employee or she is state employees she was a county employee former county employee now but she was a county employee probation officer but she would be responsible if an individual is released from the custody of the oregon prison system for supervising him well parole the klamath county i think the state is going to address that whether there's p p s you know she was post prison supervision i believe  i'm just trying to understand our again system because in washington we have a different system yes you have we have community corrections officers who are actually i think stadium and i should have said we're going to split our time roughly but mr payne will be able to address that statutes triggered when that service was on the person and then they tender it for the defense so what do you represent then today i represent klamath county in the interests of its former employer not being brought back into this lawsuit as she tended t defense to the county no your honor the ninth circuit asked us to appear as i understand but i'm just trying to understand your legal status and i don't represent ms moore today because she has not been properly served in knots tender that two are to the county for a defense tragic lease and you mentioned having a factual void you know what else could they plead and there wasn't anything else and that's why the judge could go to the qualified immunity question he doesn't they don't offer any additional facts in their brief or say this would also help overcome the qualified immunity defense do you have any cases or authority that we should look to that would construe the term unity from the statute as both absolute and qualify i don't your honor but i think that using the term immunity would be broad enough just by its common sense and usage as the court indicated absolute immunity to be pretty narrow and and so the use of immunity does suggest that the judge screen for all forms of immunity when a person's asking for monetary relief and that's what judge panel did in this case so i will if there aren't any additional questions for me on behalf of county i'll turn it over to the state  address the question of whether the statute is unconstitutional as applied that's in the reply brief or fifteen the only question is whether the district court's applying a little construction to the pleading should have divined a claim that r s one four four one zero two four violated his first amendment rights as applied to him and there's two problems with that argument first for an as applied challenge the plaintiff has an obligation to identify the statute in question and explain why on the facts of this case it is unconstitutional and there's nothing in the pleadings here that cite the statute in any form whatsoever the court does not have an obligation to go searching for possible statutes constitutional provisions or whatever that based on the alleged facts might have been violated doing that kind of searching on behalf of a plaintiff is going far beyond the liberal construction rule and it's turning into africa getting for the pla so that's the first reason this claim should not be if not before this cornish not be before the district court if this court were to remand the second problem is even liberally construed probation and post prison super vision he was convicted of two counts of sex abuse and the record shows that one of them the court sense in court imposed probation and that the other one the border post parole impose prison supervision apparently us at this time since november one thousand nine hundred eighty nine sentences in oregon consist of a determinant period of time in prison and indeterminate period of post prison supervision parole does not under oregon sensing anymore with the exception of life sentences you for murder aggravated murder if someone has a life sentence and they are released early then they are on parole but as a matter of nomenclature here  was never on parole and i think that's not really dispositive in this case but if there is a lot of references to parole supervisor and you asked about the function of more in this case we can't tell from the record whether she was supervising both probation and post prison supervision under oregon system it varies from county to county sometimes one person does both sometimes two people do welp i mean we never they constrain the pleadings we know that he was and he was in a month in jail that whose detail yeah that's a that's a good question i klamath county jail i doubt that he went to the oregon penitentiary for a month but i mean was this one of those situations where he was admitted to probation but as a condition of probation he had to serve thirty days in the county jail before he was and that goes to my next next part of the reason why liberally construing this complaint we still don't get to the unconstitutionality of r s one four four one zero two we can tell as a matter of fact what the june two thousand and ten sanction was for let us as i noted we have s and parole here but there's nothing in the record anywhere verify that says when supposedly sex therapist robinson took him to jail that that was for post prison supervision or probation violation and without something in the record showing that that was specifically for a post prison supervision violation  we can't get to the question of one hundred one constitutional one for you can't we reasonably infer from his statement of the facts that the reason he had to go see mr robinson was because the statute requires zero to be at the border pole parole and post prison supervision has to impose that when it releases in the post prison supervision so parents lee reading this literally construed he had two requirements from both i guess what i guess what's confusing to me is how would the oregon parole board have any authority over chavez if he hadn't actually served time in the oregon prison system or was i believe the record shows he did yes  he said he spent a month in jail but and i think that's the klamath county jail but what we don't know is what happened before that in other words had he been discharged from serving that shows that he was released from the department of corrections and he submitted a proposed plan of re entry this is in the record of fifty nine so we do know that he did spend some time in state prison we also know that  one and count three on count one he got probation on count three he got prison time and post prison supervision that we had to separate female victim eleven and twelve or something perhaps given a short county jail sentence on one and then imposed and then sentenced to prison on two on on the count one he got probation no no jail time as far as the record shows on count three he got prison time and post prison supervision so when he lands back in klamath county he had been released from the department of corrections right and at that point was when he went to a therapist robinson right and when he refused to do the treatment there was robinson he was someone jailed him for thirty days and that's the sanction that we're dealing with here and my point for another time here that we can't tell the fat sanction was a result of a violation of post prison supervision or the probation on the ice on the other count giving him you know basically revoking his right so i'm just having trouble with your argument to be honest it's i mean it's a it's a thin argument that may well be correct in the end but on a prisoner complain it's a question well the liberal interpretation of a civil rights complaint may not supply essential elements of the claims that were not initially pled and here the essential element that's missing is that that june two thousand and ten sanction was a result of a violation of the post prison supervision that was imposed under r s one four four one zero two four so i guess if so if the case were to go back and i'm not of like judge mchugh and i don't know but what would preclude plaintiff from amending the complaint to more clearly stated cause of action alleging a constitutional violation with respect to the statute that would be at the discretion of the district court whether it wants to allow an amended complaint so that was the theoretically  futile to preclude amendment or to miss on the screening basis well i think given given the procedural posture this that had been languishing for so long that he has been given opportunities here is one of this again that goes to the discretion of the court and clearly judge powder was was not feeling too patient about the fact that they had not responded to this and had not moved on the case at all for over two years so very limited that they are trying to raise on appeal this first amendment claim and the question is whether that can be divine and or stand your argument but would you agree that it's perhaps possible that the admin that the the this record is and is not under any obligation some obligation to go looking through all of the oregon statutes is a gee there must be something in here that will fit on these facts that i can find a claim for this fellow and that goes into advocacy on behalf of the plaintiff rather than  about the statute how does it all apply and judge mccune to your point this is what discovery is for this is why cases shouldn't be dismissed at the earliest possible stage he's plausibly alleged that he was on probation and he had his probation revoked and judge tallman in answer attorney's motion to stay the condition of probation and it says in the background section the second sentence the court placed defendant on sixteen months probation on count one the judgment includes a condition that he quote submit to pay for an evaluation by an approved sex offender program if eligible to help to state and complete the program a say can take probation condition imposed by the klamath county circuit court yes your honor and then did the oregon parole board impose a similar requirement with regard to the post prison supervision that i don't know and we need to take discovery to answer that question what's the claim against the  be if we read this literally to construe a claim arising out of conduct by mr robinson and is more and we assume that they're  both acting under color say law and then we have to the next point which is what the law clearly established that someone who's been convicted but it could answer that question but it would be preferable to wait until after the defense has been raised and fully briefed by both the plaintiffs and the defendants and then at that point the court can embark on and if that's the rule we're going disagree your honor for two reasons first being that the statute specifically references a frivolous complaint as one that can be dismissed right away we're not dealing with a frivolous complaint here but the second point and to judge mchugh point earlier well so is your answer yes you can still screen now under one hundred fifteen if the district court thinks that qualified immunity would attach or yes no in no case in no case in tell the defendants have been served  an opportunity was completely got one hundred fifteen that can't be what congress and everywhere where do you get the service requirement it's tied to a notice principle that the plaintiff needs to have an opportunity to respond to the court's contemplated action again we're talking about dismissal on the merits with another whether people are served or not if let's just say they're served ok that's a piece of paper in the file that doesn't actually change the calculus of the district court making a legal judgment to i mean at first i heard your argument to say qualified immunity can't be on the table so the individuals of them didn't show up and raise their hand  my earlier question to you was if the judge has the power to look at qualified immunity why in this case couldn't they move through all the steps assume them all in favor  come to the ultimate legal question as to whether it's clearly established law with respect to a convicted defendant pending appeal and his situation with respect to the last part of your question the answer is that it's and we have our research i don't see how any court's going to be any better situation to figure out the answer to that question than we are your honor we're asking this court to adopt a bright example soon to be published decision in the federal reporter gomez beetle edo and crawford l b b b britain are the the clearest cases and we're talking about turning the rule in those cases literally on its head and so if the court is not willing to adopt a bright line  perhaps more workable rule is that the qualified immunity defense must be obvious from the calm the face of the complaint as it would be in judgment humans example of painting the road red that's going to be a very rare case indeed and certainly not the case so we would ask that this is also a case in which we have probable counsel so i would like to thank you and your colleagues for taking on the briefing in the argument in this matter as you know is much easier for the court to deal with fully briefed in a well briefed case and i think it's actually always better for the other side as well so that we are not all left to divine what may or may not have been said so thank you on behalf of the court for your