the judge columns on my left judge comes deserves an extra thank you from us because he volunteered from his busy schedule in arizona district court to by the way we've got this set for ten minutes and if you want to make a rebuttal or a human please watch your time and so before all the times don i would like to reserve four minutes or in the court my name is darryl parker and i represent mr jensen who at all times during this litigation was an inmate at the monroe correctional complex and i think that's significant because as an inmate he has to navigate two completely separate issues st he has to make sure he exhaust his administrative remedies before bringing an actual loss and and nd if he has a claim which involves either the extension of his confinement loss corpus and a civil lawsuit was what was concerned the court heck the court in heck was concerned with people using the civil process to circumvent the a b s courses corpus process and as a result the heck decision is not a tolling decision although sometimes it's referred to it that way it's actually in a cruel decision and plaintiffs claims did not accrue until after his personal restraint petition the cause of action did not accrue until the state tribunal had overturned the person respect petition and his declaration in opposition the summary judgment mr jensen also laid out when he filed his personal restraint petition and that is person restrained petition was the night and when it was denied in addition to that when he filed his one hundred and thirty six page complaint although he's an inmate and he can't really be expected to know the rules he put in the jurisdictional section of his complaint that he had filed a personal restraint petition what the results of the person restraint petition was and what the ruling was and so if the statue of limitations is an issue of law and whether or not the statute has run is an issue of law i don't think that he should be charged to have waived it in this circumstance and he certainly raising it on a says retaliation claim based on it's not really clear one of the reasons i think he wanted to have his complaint amended is because he filed his original complaint by himself using the present law library  dozens of pages and dozens of allegations but nothing specific until he got counsel and by the time i got involved in the case it seemed to me that the complaint wasn't clear as to what his reus to what history tally ation claims based on was that the denial of credit was it the exercises of his st amendment rights cause the prison officials not to follow their policy or both of those things it was a combination of things because what he's saying is that he complained about priya violations he complained about male violations he complained about threats he complained about one of the correction office having a knife so it was in a sense is the st amendment claim it's a sort of strange because i don't think priya provides him with a separate cause of action but i think he can make a retaliation complaint based on his exercise of the nd issue in this appeal and that is if the purpose of the prison litigation reform act is to curb litigation the court has a choice the course can say look if you have a claim even though it's based on similar facts even though it's based on conduct that's very very similar are we going to require you to bring multiple claims because one or two of the claims involves good time or are we going to wait until the good time claim has been resolved so that all the claims can be brought at the same time and if you if you listen to some of the arguments that were made in front of the supreme court and some of the cases following heck one of the things the courts was concerned about is splitting claims and whether or not tolling is the answer to avoid the splitting of claims and i would suggest to you when you have a situation where the claims are this interrelated that it doesn't make sense to have the inmate split claims that the inmate should be able to wait until after the person restraint petition is resolved in order to bring one set of claims together and that's what i think the court that's the rule i think the court should adopt you acknowledge that your client in this case happen in that situation is that it will result in two or three lawsuits based on difference that is the limitations and he can't bring the ones involving the loss of good time until after the person restraint petition has been resolved good morning they please the court michael lynch assistant attorney general on behalf of the pelleas the sole issue argued my mr jensen in this appeal is that none of his claims were time bar because of a delayed application the delayed a cruel rule under heck be humphrey these arguments fail for several reasons st of all he never cited heck below and he never argued  delayed a cruel blow and his delayed a cruel argument is based upon a loss of earned time and he never made that claim below he never in the magistrate judges report and recommendation and the order adopting it there is no mention of any clane for loss of earned time nor application of any analysis of a  hack delay to cruel the district court analyze twelve claims that were set forth by mr jensen and his counsel in the interop atory answers that were sent by the defendants in those claims there is no mention of any loss of earned time the only loss of earn time claim so to speak was in his opposition to the defendant's motion for summary judgment  indicated while plaintiff was in i am you defendant's also illegally revoked his earned time st plan of cannot bring up a new claim for the st time in opposition to summary judgement moreover the claims that he made none of them were ever tied to the facts none of them were ever tied to the individual defendants there was no identification of who did what when that is simply not enough to raise a just genuine issue of material fact in opposition to summary judgment in the event this court were to conclude that somehow he had preserved a claim for lots of earn time below that would be the only claim that would be subject to a heck delayed of cruel analysis because it would be the only claim that was hacked barred none of the other claims were heck bart and for example his retaliatory infraction or report claim related to preah which this is tied to indirectly was  challenge the dismissal of his claims again by citing to the record there is no mention of the individual defendants by name in either his opening brief or in his reply brief as this court appropriately noted in the independent independent powers case the art of advocacy is not one of mystery mr jenson's failure to even attempt to comply with the requirements of federal rule of appellate procedure twenty eight dollars prejudiced as both this court andy a pelleas in understanding what his claim is and how to respond to it finally this court should not consider the claim that mr jenson made in his reply brief for the st time about asking this court to adopt some kind of new to rule for eight the men make claims that's completely inappropriate for these reasons the pelleas respectfully request that this court affirmed the order granting summary judgment does this court have any questions with respect to the argument that there should be some sort of equitable tolling or continuing violation that was raised in the reply brief i think in general issues raised in a reply brief should not be considered by the court but in this particular case because it involves strictly a question of law as to whether or not a claim of denial of medical care is  itself a continuing violation i think that rule so allow the court to consider it with respect to the main issue in the case i think basically what counsel is arguing is that if you do not state the words heck or you don't make a hack argument to the court whereas the complaint itself sets out the fact that you did in fact follow a personal restraint petition and the date that the personal restraint petition was overturned or or granted in your favor he states that in his complaint he states that in his declaration in opposition to summary judgment the fact that the words heck would not spoken i don't think is the term it's because i think as a question of law the course is still