and i represent plaintiff appellant taylor glance or early in this litigation the district court denied the reward twelve b six motion to dismiss and in doing so youthful employment or boot camp program she says by the same criteria as they did second because she is similarly situated with all of those men ms blanchard has a right guaranteed by the united states has to sion to a comparable program as those men receive therefore her hell occasions which must be assumed true at this stage that she was provided a markedly inferior program to those men create a nice simple claim under the fourteenth amendment standing here today of course we don't know whether she received a comparable program as those men or whether she will ultimately prevail on the merits what we do know is that the florida program in which she was placed was  third shorter then the wyoming program and that her allegations state that she was denied programming training and destruction that the men receive is a reason is your client complaining that she wasn't in boot camp longer yes she wanted to be basically incarcerated for more time than she got that's right and the reason  something to her credit is that she does not want to just be out of prison she wants to stay at a prison she has has substance abuse issues she was hoping to get programming in florida for them she was denied that program didn't have them so the relief that she is it wants she doesn't want to do over the wyoming program right as she she wants the components that were know what she missed out on ok but those are the two things that were exactly ok exactly is it is substance abuse programming or treatment available to her through the state of wyoming is part of her probation yes i is and the reason we don't know whether the florida program satisfied the constitutional requirement of comparability is that as soon as ms blanchard graduated from that short program the district court dismissed her complaint as move the district courts dismissal was based on one ground only redress ability the district court quoted the wyoming boot camp statute which states that it's available only t argument for the first time first i want to discuss the district court rationale for modus and then address the defendant's new alternative argument at first glance the district court ruling has some facial appeal because after all she did graduate from a boot camp program in florida however that is not the equal protection s s the fact that she graduated is irrelevant to the equal protection analysis it's whether she obtained a comparable program which is why you're saying that th the components that were missing exactness order program let me give you let me offer this an elegy let's say that this afternoon the city of denver announce us that it is changing its high school program and if the court will permit and have white students participate in a four year program and black students in a four day program obviously a lawsuit filed by those black students it does not become moot when they graduate in four days the issue is not whether they graduated the issue is whether they obtained a comparable program to their similarly situated peers do you agree that if a court issues an order saying somebodies completed their sentencing can be discharged that the bure prisons can or the wyoming state prison whoever whoever we're talking about eight that they can basically force them to leave and that the prisoner can say you know what i don't want to leave i think i'll just say yes i do and this is not what happened here what happened here is that she returned to her sentencing court and the sentencing court then placed her under the jurisdiction of the wyoming department of corrections this same agency that sent essentially it's just incarceration by different form remedial form but it is that when the court is sentencing someone to incarceration they just use that as the menu option yes basically it would be ok for the remaining five and a half years up to that point the director of the wyoming department of corrections could it is not situated to put anyone in the boot camp program a anybody can program and other words you can't build a even if we use your hypothetical we can't fill the additional beyond the four day time or your getting the lead here right first of all we don't know that and that goes to remedy well well why don't we know that you just told me that this boot camp program is in lieu of imprisonment the while me department of corrections is not a director of the y and department of corrections can imprison anybody and then i me put them in prison that is a judicial function correct that in mind the director or the wyoming president can't give her additional boot camp time right and they're going to can see that because you made i can see that but i'm trying to understand the logic of why wouldn't that be true it may well be true that goes to remedy the rule that are we talking about whether there is an effective remedy that is the whole concept can these people give her a remedy yes they can and gig but they can they but i'm trying to i'm trying to look at a little menu here we're talking about and see whether there is a remedy one piece on that menu is additional bootcamp time and i'm sand i wish you can tell me otherwise i don't see any weight anybody other than a court could give her additional boot camp tom your honor that would depend on why home he was that's what i was asking you what wyoming what your conception of boot camp was under wyoming law and if it is a substitute good for imprisonment the same thing as imprisonment in a different form than the director of the bureau of wyoming prisons can't imprison anybody can all we know for the purposes of this case now is that she is entitled to a comparable program she is not and her allegations are that she did not receive winnow the relief you're seeking that's within your they do have substance abuse within their purview right because of their control over probation yet couldn't couldn't a substance abuse program stemming from that probation provide her with an equipment yes ok question and again it will be up to the district court to determine an appropriate remedy so what i'm just wondering it sounds to me like you're suggesting that she has  almost an absolute right to certain things us as a matter of having been convicted of a crime what if the district court had she says your honor i want to go to boot camp and the distributors as you know i don't think you're good candidate for boot camp i'm going to put you on probation instead the only thing she has an absolute right too is equal protection she has an absolute right to kind of this court held that in march for vs newton every court to address the question is held that female pres prisoners have an absolute right on in the will protection clause to a comparable program is it disputed and she had not been in prison before what about the idea that her initial complaint was simply mean to wyoming boot camp or boot camp in another state and then when she got what she asked for in that disappeared this trip it at the time in and i take responsibility for this and i was the author of that and the time it never occurred to me that they might respond by sending her to an out of state prison as soon as they did that i realized that this is an issue that you cannot treat only women by sending them out of state and i made that initial what wouldn't that be appropriate state function though to for the state who doesn't have an existing program that can accommodate women maybe there's not enough demand for it that they say you know what we're good point your client should give to go to boot camp we don't have the ability to provide that here so we made arrangements with the state of florida for her to attend their boot camp and that may be so and that's something that this report will have to determine what this court has to determine is whether the allegations of the complaint set forth and equal protection put it again remedy can be any number of things we are actually hoping that she does not drives the movements analysis and so saying what the district court could give her really is not the relevant question here the question is what you want in that determines whether this matter is moot because what you want will determine whether the court can give it to you of course  earlier and as i understand it correct me if i'm wrong your menu really boils down to the additional time that you lost that forty can give or and some drug program has not necessarily definitely had a drug program the only reason i cannot answer that with more specificity rider is that they the defendants haven't stated yet what is in the man's program so i don't know what she missed out we do know that they have a nationally recognized drug program because then it came out during the discovery and we do know that she didn't have a drug program because she went to florida graduated from a boot camp program but because she was released from prison her first amended complaint asked only that she be sent to a boot camp prison she amended her complaint after she was in the florida program and she didn't ask attend substance abuse treatment she's not only been attending it since her release but she's teachings of the treatment and she said to graduate from that program in march well it's my understanding that they still feel that one deficiency and one lack of comparability leads to substance abuse treatment i mean is is there something about the pretense she's getting that is not not that i'm aware and not that plaintiff has alleged if that were the case if court has included substance abuse so that it has liberated the department of corrections to in fact provide a substance abuse program so she wanted one she could get one rot that's correct i guess the hypothetical that was giving as if she were not ordered by her here matter of her mood is purposes and with that in mind is it in the record that she is actually in a substance abuse program it is not your honor ok so is it let me ask you though about the terms of her probation is this a deal where the court said ok i'm going to send you to boot camp or i'm going to send you to i'm going to recommend that you be remanded into custody i'm going to recommend i think is the way it works that you be accepted into this boot camp program and when you get out of boot camp you have to attend substance abuse treatment you know outpatient substance abuse treatment for a term of eight weeks or whatever one of those defined post  prison treatment programs is that sort of how it works that is how it works ok yes so the judge says it you implement what the judge says if the if she for some reason was to quit going what would happen so the department of corrections does not actually implement the substance abuse treatment currently her substance abuse treatment is through sublette county and it's funded through grants summit county however if she were to violate the terms of her probation then her probation officer could make a recommendation to the court and the court could revoke her probation and then she can go back to prison mohammed are going to corrections director that she go to that substance abuse program right i mean it doesn't have to be the provider she's only going implemented by the individual providers which are the counties were it is probation come into the equation that the department of corrections has more supervisory authority over parolees versus probation that's not the question i ask you she's on probation as part of her probationary charge she has to do substance abuse right that's in who's in charge of that the department of corrections is in charge of probation right that's her act right right but they are not in charge of setting the terms of her probation and that hasn't been a factor that has been important to this or in previous holdings right where i think what judge holmes is saying is that if the sentencing court says she gets drug treatment it's your compartments job to make sure she gets drug treatment it doesn't matter that it's through the county or through the b o b or whoever it might go department of corrections but but the buck stops with you you if the if the county don't make it available you've got to find her another place to go that's correct ok get to fulfill the conditions that are set by the sentencing court and previously in the holdings of this court individuals because the department does not have enough control over those individuals in order to grant any effective relief whatsoever and that holding was echoed in jordan be so stout well yes in this situation  hurry why haven't you put in the record at any point the fact that she's in substance abuse if that's in fact what they're asking about why and that's on their menu item and what she's not getting what you told us that that allegation was never made below and that's the reason well the request was for our participation in the boot camp program only it was not about any specific deficiencies and so when miss blanchard asked that she be released and she waived the terms of her away of her ability to contest the terms of her probation the department of corrections moved to dismiss on that basis and it was a real short one page order of us had missed lansford is asking only that she goes to the certain prison she's now asking her something or to release her from present this case is moot and so there doesn't argue something below she doesn't ask that the case not be moot in this when ok i'm missing something but below district court she's had a change of circus and so she says the case is not moot your honor because i need that that's correct ok i don't know i'm sorry it was a florida boot camp program at that time yes yes and she knows determination that brings us here now is after her completion of the florida boot camp program after completion of the florida boot camp program she moved to modify or sentence to release on probation but prior to her release she moved to amend her first her complaint excuse me and she didn't ask for any such really and then she asked to add additional plaintiffs to save her case from a less additional your understanding of what their argument was for why it's not because they were going to add additional plaintiffs to save the case from s and that's in the record as it relates to her though why was it not moot or they concede it was that they didn't that but they said that the reason that they needed to add these additional plaintiffs was to save from lest they didn't go as far as to say we can see that this case will be moot of some really so so it's your understanding before the district court that at least as it relates  if that's true at least i understand the poetry to be on appeal or her position on appeal to say i am missing the component of the wyoming boot camp program i am missing the time and i'm missing the substance abuse that's her position on appeal is that your understanding that's correct ok then it's your understanding her position on appeal is not the position she took for the district court and we have and so why isn't it have you alleged anywhere that she supported the arguments used raising on appeal now i haven't we that allegation but i mean it may very well be the case although it's nice to now but i mean it seems to me that that's what our law is i mean at least that would be incumbent upon you to least think about and the reason why is because this case there this court's previous case law is so directly on point that when an individual is released from prison and they only seek injunctive relief relating to their incarceration that case is moot every time and my opposing counsel hasn't had any authority to the contrary and so the waiver issue from my perspective didn't seem like necessary was she's not well i'm not you know i'm not i'm not trying to coach you are not advocate this case i'm just saying that it seems to me that right now she's claiming that there are things that could be provided to her that have not been dissolved by her release from prison in other words if we view boot camp program as equated to imprison them which we talked about then the fact that she got out of the florida boot camp program her position would be i as i understand it from the argument of course the fine point that was put on it today that she said at a minimum she wants and substance abuse program that she didn't get in the florida prison and she wants whatever comparable time she can get mootness is determined by whether we are capable of giving her the lead if she's asking for things that are not quite a will to cannot be acquainted with release from prison then should there are things that are on the table that we could give her so why isn't that the case being released from prison doesn't mean you've got a substance abuse program being released from prison does that mean that you have the time you got the wyoming program so why is it the case that it was her release from prison i e the boot camp program move those things because that's the way that this court has ruled in the past for example in green the branson the plaintiff brought a complaint for medical care and he was released from prison before he received the medical care that he  full stop in this situation she's out of the boot camp program prison she's still a probation or she's still within the control of the department of corrections she want a drug program the department of corrections as we went through in a long conversation is situated to ensure that she gets that drug program so why is that moot because that is the way that this court has held previous the argument tell me how the brain example is a play ball with the situation it's one thing to say a prison can't take a prisoner who's out of prison and give him health treatment now when they have no control over that prisoner how why is that equatable to a situation where they have control over the prisoner and they are situated to in fact give that prisoner what that prisoner was because the department of corrections doesn't have any authority over the terms and conditions of her parole we just talked about this sheet of court gave her a substance abuse treatment the department of corrections can ensure that she gets substance abuse treatment so why does the department have control over that they they do and she has been in substance a comparable boot camp it over its own and sent her to other state places that didn't have a comparable program in her first amended complaint after she was already in that program she never asked for these remedies and when she moved to be released on probation she never asked for these remedies and in fact she waived her ability to do so and she has an affidavit in the record saying he answer your question we express lease stated to this district court rather than please miss blanche into a program comparable to the one in newcastle the fence placed her into a significantly shorter substance abuse in the district court yes in first bear in mind your honor that we filed the men a complaint a couple weeks after she got to florida she had four months left to go she didn't know for sure at that moment if she was going to get drug rehabilitation program the health the minute complaint based on the information available to us at the time i do you agree that she is in substance abuse program only because she is and is that a comparable is that giving you what you want on this up since we don't know if it's comparable because we don't know what the manner get it the second thing i want to point out is burden of proof