sentence at the b o c facility in lima in colorado clay differ sieved a new charge of introduction of contraband and st degree dangerous instrument for possessing and or creating a weapon similar to an ice pick from a he was involved in at least one physical altercation in which he punched another inmate in the head and base and he was discovered to be in possession of dangerous contraband and other disallowed i are different than us one in this regard the defendant is searched the prison time goes out is actually on parole commits a crime and is put back in for the profile asian and awaiting charges on the st case but this one the defendant as you say goes from lyman the lincoln county mediately correct i don't i don't know if the defendant is serving parole at that time is his two year parole going clicking off day by day or is his parole not even going to begin running until he's actually released from confined so it was our understanding that is parole began his two years of rule and he was there for a sentence because in colorado at least under colorado law and in may on parole i don't believe the parole was suspended during his time of incarceration he the documentation in the record reflects that he was paroled to the lincoln county jail in his recommendation he didn't address the parolee argument in his recommendation in the body of his recommendation the magistrate judge did not address that but it was in the footnote right it is it is included in one  although he limits the argument to what the defendant thought about its cruelty status rather than actual the actual parolees status the dual status so he limits it to what he actually what inference that or what district court found that those facts were undisputed and unlike other motions for summary judgment where the moving party carries the burden of proof to demonstrate that there are no genuine issues in the serial fact when a defendant asserts the affirmative defense of qualified immunity briefing there are blatant contradictions in the record and in fact played it did not cite any any citations to the record in his initial reporting and was given another opportunity to do so and when he the denials he made to defend in statement of facts are blatantly contradicted in the record he says he denies the statement of fact that he possessed any contraband in the league county if you look to a citation it simply states that oh i was allowed to have these things when it's clearly indicative in the depositions in the record and we can tell you the policies that he was in fact not allowed to have items with you on dual status and then the whole girly things out the window he's only being held as a pretrial detainees and if that's the case you concede that the repeal is not process contrary to the law plaintiff is incorrect we maintain that defendants fail to establish that their entitlement to qualified immunity however once defendants raise the issue the burden then shifts to the plaintiffs or should means that the defendant's conduct was sufficiently clear that every reasonable official would understand that what he is doing is unlawful existing law must replace the constitutionality of the officers conduct beyond debate as this court is where it is not enough to be suggested by that existing precedent the president must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply and that was not the case in this matter the circumstance the standard requires that the legal principle clearly wrote prohibit the officers conduct in the particular circumstances before him the rules contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in this situation he confronted this requires a high degree of specificity play just provided no th circuit or united states supreme court case law on point and i don't believe any exists tending to show the defendant's actions holding plaintiff in his own cell or in a holding cell for a limited period of time while they decided where to house him safely or moving plaintiff to another general housing pot that he actually deprived of their statutory and constitutional rights because an overcrowded conditions under length of confinement improper searches inadequate recreational educational and employment opportunities insufficient staff and objectionable restrictions on the purchas cell temporarily very temporarily or moving plaintiff to another general housing where he requested to be housed when you were created unsafe conditions in the jail violate clearly established and those absolutely  so there was no evidence of intent in the record of accurately reflects i think that that the sole intent the magistrate judge relied upon in the district court later affirms was the plaintiff's subjective opinion that he was being punished there is no other evidence in the record stating that you know there was any indication that he was being punished and your honor i do see that i have  morning your honor may i please the court mr hubbard mr hubbard believes that this court and this appeal this court mr hubbard believes that this appeal exceeds this court's limited jurisdiction to hear and a lot of very appeals based on qualified immunity and it is mr hubbard's position that these jurisdictional issues need to be resolved before we move on to the merits of the officers appeal unless the court has any questions regards to the blatant contradiction issue mr hubbard will rest on his briefings on that issue and move on to the firm later rules understands defendants to raise plaintiffs parolee status as a factor relevant to the determination of whether defendant's actions were incident a legitimate government purpose the court finds it unnecessary to consider this argument the magistrate judge found that because when you look at the recommendation of the magistrate judge found that mr hubbard met his burden to show that there are sufficient evidence for jury to find intent to punish the law under bell is that you must show either an intent to punish and if you don't have enough to show an intent to punish then there is a legitimate government interest that could be looked at because the magistrate found that there is sufficient evidence for an intent to punish there was no need to go into that nd issue of whether or not the officers here how diligent government purpose in placing mr hubbard was a correction so without having to reach that issue the magistrate properly found based on their understanding of the early argument that they did not need to reach that issue the officers chose not to raise an objection to that in order to give the district court an opportunity to review consider the parolee argument and then make a finding by choosing not to do that the officers have waived any appeal regarding the proly argument the officers have not provided this court or made any argument that an exception applies to the f specifically here the exception that would apply would be the interests of justice the officers in their briefings before this court have chose to not properly argue that the interests of justice exception appl rather only once raised by mr hubbard that this appeal is barred by the firmly rule do that did the officer then respond and say it is not without actually explaining why the interest of expect the interest justice exception actually a part was enough of an objection to the magistrate's order to jack that he had switched the burden to prove that by saying i'm not going to address this because i haven't been given enough information the issue was before him and at that point why isn't he ripper since we're talking about qualified immunity to deal with that issue it is not sufficient to mr hubbard's opinion that the defendant that the officers just raised the general objection the reason being is the officers are looking at the magistrate's recommendation and shifting the burden only because the officers don't believe that there is sufficient evidence that there was an intent to punish that brings and the facts to this appeal which as your honour's have already realized is exceeding this court's jurisdiction unless the blatant contradiction  but the recommendation found that there was an intent to punish when you look at the summary judgment briefing two in the lower court the officers essentially just move past the intent to punish they don't believe that there is oppression evidence for a jury to find that there is an intent to punish and they merely just moved on to that nd after that nd piece was there a legitimate government interest here and if it's a if it's a dual status is that a problem that there was an attempt to punish no your honor the reason being while there houses while we have not been able to find a specific case on point out of this panel let's point out the cases that do exist provide enough analogous to another have been then ology for the case mr hubbard was paroled he would have been released as most prolific are into the world if it wasn't for the spending chart in lincoln county that he received while he was serving another sentence on an unrelated matter so rather than being paroled at least in the world he was transferred to lincoln county at the pretrial the taney to serve for that to await adjudication that charge you know whether the record shows whether the time that it was sending in lincoln county was being credited warders two years of parole i don't believe we provided that information during our summary judgment briefing but i will represent to this court that he was receiving his parole time while being in lincoln county  a dual status he is still status to the extent that he was serving a term of parole while also being a pretrial detainee but is mr hubbard's position that the pearl the status should not impact how he is treated and his status in the only county jail because as the case law shows mr hubbard was not a parolee that was released and then was arrested and therefore a potential parole violation for receiving a new went back and forth hamilton hamilton being one of those cases that look that if a parole violator or a probation violator is brought back into the custody which status actually applied are they considered his parole and has zero allegations against him for potentially violating the terms of his parole should certainly be a detainee because again mr hubbard had bail set for and is pending charges in lincoln county and had he been able to post that bail he would have been released from their custody because he was not there with regard to early start it and for the officers to consider that his parolee status therefore implies that they can treat him as a convicted inmate is erroneous it would not make sense that you can consider and every single person's prior bad acts prior conviction that does not seem affidavit that the conduct taken against mr hunter was in direct relation to his pending charge as this court has already heard the contraband found which has never been raised before until the reply brief to this court that the pens and pencils that mr hubbard in his possession for drawing and writing all the sudden resemble the shank and that that was the reason for their punishment against him that was never previously raise to the lower court and it was not in any of the briefings before the court until the reply brief so there it is sufficiently separate that mr hubbard's static is really just a fallacy and should not be considered if this court decides that it is going to look at the legal question but before and not apply the families if this court does then finally she plaintiff's counsel keeps relying on an intent to punish but it's not just an intent to punish it's an expressed intent to punish and the case was very clear that that intent to punish must be expressed it's