repeatedly slammed his head against an iron railing and after he recorded the assault that guard and several others retaliated on two separate occasions by placing the story in hard restraints for forty eight hours with no opportunity to flee or use the toilet now i'll begin with the legal issue that this court ordered further briefing on may mr reid damages under begins to redress his injuries in particular his  t amendment claim and the answer is yes for decades prisoners across the country have been able to bring conventional buildings actions like mr reed challenging physical abuse by prison guards defendants argue that this court longstanding recognition of those claims must be set aside under the supreme court they're going to be a bof a decision about it and correct as i can focus on the special factors analysis because that applies to both mysteries  st and it and then explain the central inquiry under that analysis is whether there are sound reasons to think congress would not want to exist in these circumstances there are sound reasons to believe congress would want that is strikes rule p r a prescreening and the payment of filing to congress was also very clear that it did not wish to prevent legitimate prisoner claims from going forward so in other words congress tried a careful balance did the availability of ins relief in order to weed out the bad claims by allow the good ones to proceed and defendant now asked the court to nd guess that judgment by eliminating giving claims strengths but i'd like to ask you to turn to some of your weaknesses because that's more meaningful to me so i know lawyers don't like it when i do this but if we could poke at it seems to me a problem that you got and because the other thing about it talks about is pretty clearly  concern about separation of powers and it's not our job to run prisons and so we have to we have that and i grant you that there aren't high level certainly not cabinet level involved in this case i think we're in aussie the other thing is that there's other forms of relief here available aren't there this isn't a situation where this person would be turned away can you speak to that please are there other remedies that are adequate here absolutely honor there are no i mean he's available here that would indicate that congress would not want their things to be available which is what the rd circuit in this room has concluded when presented with the same remedies that defendants argued here now the only alternative remedy that abbas itself discusses is injury only damages can redress injury and defendants have not disputed that that is the type of claim mr reed has brought now defendants primarily emphasize two other remedies st the federal tort claims act officers should be liable in damages for actions taken within the scope of their employment and it generally provided absolute immunity to officers from suit for him state tort claims but it included an explicit exception injury that the petitioner claimed was alleging was that the prisoner had been transferred to a different prison facility and in fact he was able to redress that injury through the permanent prison grievance process and securing transfer back to the original facility so the court said this is not a case where damages are necessary because he is artist off his own problems through the grievance process but that is not the case here where there were three specific instances of physical abuse that are long over and there is nothing that the grievance process can do through mediate that these this is not authorized images which is why if there are what if that what if forgive me for interrupting what all three of those instances are repressive under the th amendment does that mean we ought not recognized so could you focus right on that seems to me very critical point yes your honor the supreme court has instructed that caution that the exercise in this area but it has also emphasized that damages can still be necessary to address the persisting concern of an adequate deterrents which is exactly the type of concern at issue here perhaps the most serious type of st amendment violations where prison guards abuse their position because halle ition are protect in the government's read and our brief because in that case addressed a very similar concern the defendants there were arguing that there should be a special standard that applies to personal retaliation claims because they are usually alleged and the court said that is exactly the concern that congress has already addressed in the p l r a the whole point of the p r a d was that congress was considering whether prisoners were filing bogus lawsuits and responded to that concern with a comprehensive legislative solution that imposes numerous disincentives and deterrents but also reflects a congressional judgment that business should still be available so that prisoners with legitimate claims in because the court said it is not it's up to us to nd guess how congress has decided to deal with these very concerns that was congress's legislative judgment and we cannot the rd it and of course that is exactly what abbas says the court should do in this context as well i'd also just note that claims like mr reed are nothing new he is this is not going to open the floodgates to some litigation he is merely asking the court to retain the status quo that has existed for decades and so as the rd circuit said and in this trend decision where the president claims have been available for so long there's simply no reason to believe that they're going to cause any unto disruption eighty six decision and gibson claims have been available for many years and in fact when congress legislated in the p l r a type of claims were available across the country so congress certainly would have them in mind when it about that if you can think of a hypothetical where the retaliation is not physical punishment or perhaps denial of you know family visits or little access to the library or something that doesn't involve physical punishment violates the st amendment for example which ozzie tells us that sort of a lo with the state of scope of their duties yes the remedies under state for what self he has the option to the administrative remedy program to raise issues for investigation and be sent serious misconduct i read into it an extension of carlson to any number of inconsistent with the approach we have to state to these cases as the supreme court in hernandez just just recognized with respect to a similar argument made regarding the west new context here and then whether the it is ready should be extended is a question of who decides question in which the answer is usually act are not intended to extend ivins released beyond where it exists at that time but they have not denied that they didn't claim just like mr reid's were already widely available throughout the country recognized by the majority of when it legislates and that was certainly true here where everyone agrees congress was physically focused on the types of preserved events claims that were available including st amendment claims and that's why congress in fact approved those cl retaliation claims do not pose any special burden on courts and can be dismissed as a summary disposition age as also i'll just mention as far as the best written decision although i did find there was no personal retaliation claim there that was in the court's view because he was attacking the prison policy which is not allowed under basi and it specifically distinguished the incidence of acidic physical abuse that were available  box itself because in that case it was also a prisoner abuse conditions of confinement case and yet when the court analyzed the new context inquiry as to the prison warden it did not identify the fact that it was physical abuse and not medical treatment to make it a new context and so certainly if the court in a box he had made then if i add that into his that it's not a meaningful difference and finally your honor i just like to emphasize how sweet the government's position is here because adopting their arguments would mean that in the future guards can physically abuse prisoners knowing the prisoners will not be able to sue them for anything and that no court will ever adjudicate the constitutionality of their claim that is not the result that congress intended and this court should reaffirm court st and is and then the prisoner been claims are made available and thank you both for your excellent arguments you helped us flesh out a really important area and we appreciate it very much and in particular mr kessler that we want to thank you