please the court your honor the parties appear to agree on two key points defendants do not seriously dispute that the district court erroneous lee instructed the jury on mr walker's first amendment retaliation nor did they attempt to deny that information ordinarily protected by the psychotherapist privilege was introduced at trial accordingly on the first amendment question the only contested issues before this court are whether plane air review applies and if so whether the improper jury instruction here was prejudicial and on the privilege question the case boils down to whether the privilege was waived now beginning with the first amendment in russia and also whether the objections waived that's correct your honor on the first amendment question down on the privilege issue as well on the privilege issue as well fair enough your honor and if you are like me to address that to take it in your sequence ok sure thank you beginning with the first amendment question the district court's error with both plain and prejudicial it was plain because this court's precedent in green and made not to mention its pattern jury instructions clearly establish that a plaintiff has set forth a prima facia case of retaliation the burden is on the defendants to show that they would have taken the same action even absent a retaliatory notice that's not what the district court required here right we know that the we know that the content of the instruction was wrong do we know how that ensued how that content got into the instructions of looked at the transcript of the jury instruction conference and i can't figure out how that happened i believe your honor defendant's proposed by but i do know that the mr walker said he had no objection to it and that's correct  additionally say when he was proceeding pro se that he had no objection to the jury instruction by the way with well you make much of the fact that he was proceeding pro se and you want to bend over backwards for him for that he had counsel of vailable to him at the recruitment recruited by district judge correct that's correct your honor so why should we indulge in any special latitude on the sort of point  because he chose to be pro se when keepable counsel were assisting on this case counsel was only stand by count they were there they were available to him they were there and they were right and i'll just say i'd look i've got a very hard time it seems to me you know i want you to address this in your sequence but it seems to me you are asking us to send a case back after a full litigation in the district court telling the district judge reversible errors were made when she gave an instruction to which the  objections were not the objections being argued on appeal i'm just not sure how that fits with the role of the appellate and district courts course run on the jury instruction question with the no objection question this court has recognized that even in the case of counseled attorneys in the case of counsel parties it can look past a no objection and a boat call and response that's what the court did in the janus case that's what this court did in the consumer products case that's in fact what this court did in the maze case and in that case plan their review applies in this court already construes waiver liberally in favor of the affected party and we would submit that it should do so even more than respect to jury instructions saying no objection it would be willing to look behind it to see if there was any strategic reason for the objection and here there was no possible strategic reason for mr walker to forego its objection he made no knowing an intentional decision he was a pro se litigant he simply to him nobody objected to the instruction right his standby counsel which is not counsel for sixth amendment purposes which is which the sixth amendment has nothing to do with this case that's a civil case your honor that's correct but again in a civil case in affirm that i don't know what is what is the alleged retaliation retaliate is that defendants retaliated against mr walker for submitting a letter to a conditional release agent here and they did so because he i'm asking you what the retaliation was if the retaliation hears was this i'm into the decision making model that took mr walker why is that a big deal well in this case your honor took mr walker anywhere from eleven days t this decision making model was time you could not spend working on other objectives that he needed to complete like him i don't understand your honor the treatment course as i understand it is scheduled to do different phases and mr walker was not able to progress into the next phase until according to evidence in the test in this in the record he completed this assignment the defendants would i wish took a few weeks which took anywhere from eleven days to a month running mr walker testified that it this took him a while we still don't understand why that's a big deal are you saying this assignment he was given had no possible you your honor we're saying that the that question was never put to the jury the jury was only asked whether this assignment had some legitimate calculated to upset him or something there's evidence in the record that it that mr walker testified to the fact the support of some of his co detainees at this this was designed to thwart and obstruct mr walker's progression through the treatment program which was no lie for him to was no value to this assignment they gave him that took eleven days or more i'm saying your honor jury certainly could have made that conclusion based on this record defendants have asserted that their justification for this record and actually we've gone from mr walker needed this assignment because the letter he wrote is misleading too well actually you're wrong actually this is you know mr walker's letter wasn't particularly significant a jury could look at that and wonder why was mr walker think there is any serious treatment for these conditions and i don't think any treatment goes on and rushville or similar century prison facilities when in any event your honor i would submit that this court would never say i don't see anything in your briefs to suggest that there was harm done to him by his being required to complete this little project that he was assigned your and i would submit that if this in i mean again there's testimony in the record that mr walker and his coat go t v coat detainees testified that he was prevented from moving forward how it's tough to i mean but how how far ahead we need to look for his potential release or years it's possible the treatment could go on but what we do know is that he was prevented from moving forward do all this or some evidence of that we don't know that but there is some evidence i'll give you that one is damages his damages he's requesting compensatory damages for the time that he spent in the extra work he spent having to work on this model and he had requested punitive damages as well and the district court instructed on both you know you have the you're an appointed counsel and we really appreciate that you know obviously if you had you and he had certain opportunity for someone else who out of these things would have been avoided i don't like to put it this way but he asked for it and he got it and he never should have turned down appointed counsel in this kind of i think he and they call it a model that he had to now say why it wasn't a very good idea to go to the whatever you call it and the supervisor of whatever he was where  the letter so that was a corrective thing they use that as a model which is you have the it's a pain a neck that it was going to did you'd have to do something else similar to that and this is where i'm kind of frustrated with that just to substitute model for what may have been another model that he had to do something probably didn't want to do well your honor this court recognizing the maze case maze case involved an allegedly retaliatory strip search this court recognized well of course the prisoner may have to undergo any number of strip searches in the future but it allowed to retaliate pain to proceed because it was a legit this was a single gratuitous strip search so in this case even if mr walker is going to have to commit to submit other models he has a valid other treatments you receives rushville the decision making model was one there's different types of treatment there's group counseling there's treatment models and he completed the ten necessary treatment models to progress to the next stage and develop and his treatment process was the next stage it's referred to as space three and i'm afraid i don't know exactly what that entails  but it's a sequential process that he moves through towards completing his treatment and getting a court certification that he can be conditionally released or that he gives people or that he's no longer sexually violent individual so how different was this project that they imposed on him from the other treatment types of treatment he's given we're on are i would say it's a since he's obviously an unstable person what is it you think it is is the difference this model was motivated by retaliatory i'm not talking about motivation what is the difference between this and the other treatment she gets your honor he had complete she this was similar to other treatments that he received but it was motivated by retaliatory animus and in this only to this court's precedents and under the supreme court what's the evidence indication that this is retaliated torrie defendants have admitted in their affidavits and in their statements of undisputed facts that they assigned him this model because he wrote the letter they were disturbed by the letter what's wrong with that because it was a him to send that letter not not i don't not that's his fault but it was a flop your honor there's evidence in the record that indicates that mr isikoff could have reported responds this letter if he had wanted to it may have been not a particularly affect  and knowing an intentional decision and some strict she did some strategic reason does the judge have to quiz everybody are you really sure you don't have an objection to this with that's not the way instructions get resolved in a trial in a busy trial court no your honor but on appeal when this court is deciding whether to exercise clean air or if you can look to the record to determine whether there's any strategic reason for the for the for the state for stating that there's no and that i think is a key point here he was not assigned an extra model they spent a significant amount of time in phase one of his treatment training him how to make decision making models and the reason they spent that time was that he could use this this tool throughout the rest over the course of his treatment which they expected to take many many years that ten models that he prepared in phase one that was practice that was teaching him how to use this tool out to do it so there wasn't a cooler on tender head that was he that's where all the reason i say the eleventh because he said you're going should have been ten and he didn't bag his limit there isn't a there set number of decision making models the idea here is that he is every time he has a problem an issue arise either in the past involving his predicate underlying crime or in his present day life they use these decisionmaking models to address the issues that are important for his release and i think this is the key the one of the most important things to remember here is the they targeted a number of specific issues here mistrust of his third group impulsivity recklessness just deceptiveness these are all issues he was dealing with and these are all issues that he has to resolve before he can obtain his goal which obviously is released back into the community so they taught him how to use this how to make these decision making models expecting that he would use them in the future and here we had a perfect example don't touch close or you would ask what's the retaliation what happened here and that's that also goes right to the point no one was angry about this doctor is a qualifier i'm not sure i don't recall any testimonies from anyone saying the doctors a club could reply to that letter what i can tell you is what dr isikoff said he said i'm not allowed to reply to th he says i receive a letter from somebody that's in the program he said he said i can not get involved with his treatment i can't get involved with his therapy at the moment he sees a letter from somebody that's in treatment he says he doesn't even they never placed that restriction on him what they saw here was an example of a many of the issues that he was currently dealing with such as impulsivity recklessness mistrust of his treatment team this is a mentioned that you don't believe the treatment takes place there i would say that i would disagree with that now the if the efficacy of that treatment is subject to question i think but they are it's clear to me from based on their testimony that they are really trying to help these individuals that they're trying to help them explore their own motives to can to help them control their impulsivity so that eventually maybe they will be able to be released to the community from earth could you tell us where the jury instruction language came from how how the the defense convinced the district judge who cleared this language the record is unclear on that point i went outside the record i went through our files trying to find out what it is how those got in there and i don't know was there i mean it looks like there was an overnight draft prepared by defense trial counsel right happens but i haven't and i don't know the record well enough to know whether the did or nine i spoke to trial counsel and her memory of this was she couldn't tell me and then i went digging through our files and again i couldn't see anything there that showed its computer compared to the pattern instruction this language at least has the advantage of being somewhat tailored to the facts of the case  you one thing i'd like to point out the opposing counsel opened his argument by saying the moment his client made a prime aphasia case the burden shifted to us so that that's the test appropriate in judgment on the pleadings or motion for summary judgment but here at trial it's different and i think it's important to point out that not only the instruction that was given but also the seven circuit pattern instruction begins with a preamble that states assuming plaintiff has proved his case by a preponderance of the evidence then you must ask whether the defendants have  satisfied their burden so according to what our position here is that he never satisfied his his case he never came forward with evidence of by a preponderance of the evidence that this that this assignment of this decision making model constituted retaliation accordingly the entire any mix up in the instructions here is is irrelevant unless we first presume that there  sufficient evidence in this record to show that by preponderance of the evidence that he proved his case i submit that there's not was a rule fifty motion no the  take a moment to just compare the two instructions that were given the essential portions of the gist of the instructions assuming the plane of proved was case by preponderance of the evidence here is the instruction that was given defendants were nevertheless justified in the restriction because it was legitimately related to plaintiff's rip rehabilitation now compare that with the pattern instruction there were other reasons which would have led defendant to assign the decision making model even if the plaintiff had not written the letter that's that's the that's the difference between the two instructions now i submit that regardless of which instruction is given that the defendants clearly satisfied their burden of proof on this issue accordingly a re manned is unjustified for the plain reading a simple reason that it would not change the outcome of this case and now we get reaction struction was given or both and the the instruction was given was that the defendants were justified in the restriction because it was legitimately related to plaintiff's rehabilitation and the pattern instruction said that there were other reasons which would have led defendant to assign the decision making model even to you not written the letter enough testimony a trial focused on that very point they were asked point blank would he have been assigned decision making models even if he hadn't sent this letter answer was yes and this is where the the witnesses went into their explanation that these decision making models were designed for future use they pointed out that if it hadn't been for the letter it would have been something else he might have had an argument with somebody of fellow detainee or perhaps a and outspoken argument with the one of his treatment team members of his treatment team these are all subjects it assuming that these these events somehow drew into manifested issues that they were dealing with him in treatment  decision making model may have been appropriate so it may be presumed that if it was not for this issue it would have been for something else if it had not been for the letter he would have been assigned a decision making model first for some outspoken screaming argument with one of his third has about the conditions there at the rochelle facility certain he has heard me every right to make that argument that's free speech that's protected speech if they were spondee in should involve itself in the details of the therapist's decisions in their treatment of the player that being said if there are no further questions iris the court to affirm ok honor and to be clear were not attempting to interfere with their treatment decisions were objecting because the jury was never given the chance to make an accurate determination of whether this was in fact treatment very quickly on the of reasons for this treatment model as you pointed out in a reply brief of pages eleven ten ten eleven many of those reasons sound a lot like first amendment protected activity for example mistrust for authority we're going outside of the chain of command or being  effective i could write a letter to the president the united states tomorrow complaining that my garbage didn't get picked up on thursday you're not only does your not in state custody in therapy however that's correct your honor but this court has recognized that even people in state custody have first amendment rights to petition for redress of grievances and again the jury here was never asked to make a determination of whether this specific model was treated your honour's is the difference between a valid reason and the real reason for an action in record it's in the trial transcript i believe that page for twelve defense how not jury illuminating is fair enough you're i mean i mean what thinking went into a church and i particular what the district judge was thinking about using language and i think you might be able to draw something from that by looking at her order on summary judgment if you look at page one twenty four of the record you will see erroneous language the language that she ultimately used in this second instruction on m walker's forward looking fine and then on page one twenty six you'll see her correctly state the standard for the retaliation plan so at some point those just got mixed up and they were submitted as instructions later on but the judge seemed to have the right idea of the law initially but then when she instructed the jury gave the jury the incorrect instruction without objection without objection from its individual proceed i know i'm stuck on that puts the understudy from individual proceeding pro se who i would