the honorable the judges of the united states court of appeals for the th circuit oh yea oh yea oh yea all persons having any manner or form of business before the honorable the united states court of appeals for the th circuit find that he was not the basic facts in this case are not in dispute st i don't agree as they were very showered in exercised very little starting in twenty four team usually twice or less per bottle he was held for several years in solitary confinement thank you and everyone agrees that the reason rivera did not shower exercise more often is that he failed to comply with the president's list procedure the real question then is whether that procedure gave rivera a meaningful opportunity for compliance you know for key facts about that procedure st the list was taken in the early morning typically between five fifty am and seven fifteen am they would not knock on his door to wake him up or accept a note left on his door asking to shower actions as response suggests that a flat prohibition i'm showering or exercising is the only way to denies them with a meaningful opportunity to access those services but while that's certainly one way to do so it's not the only way for example this court held in brown v law mana that an inmate who was unable to shower recreate because he wasn't given the crashes necessary to do so age and then claim perjury another way which is what we have here to denies money meaningful opportunity is to create a procedure that takes place in the early morning when that person is asleep to not wake him up to with has to do our bit and clear the our opponents do have some control over whether he ends up back in solitary right good isn't it predicated generally on misconduct of the enemy so it is generally predicated on some sort  of failure to a by prison regulations there is a two thousand and sixteen decision by the district court in a separate litigation and to repair highlighting various infractions that have tim in solitary confinement as a cited in the government's brief and one for example he failed to use bluetooth speakers when he had a telephone call he used a pre op hotline at to make a nonprofit really that complaint so the extent of the time that at issue is not only severe misconduct of the kind of you know activity we may think of outside of prison but quite strict and so the fact that he is here showing misuse of the total phone process could get him into solitary confinement that was at least relied on to keep him in solitary confinement rather than being allowed to step down back into the general population and so there is a wide variety of different issues that could be free to provide to put him back in solitary if this court is unsure about this issue  that's not in the record i'm asking you i don't know personally whether he still suffers from it but he did suffer from it for many years and so if he does anything to tell us a little bit more about this condition what was it  doctors requiring selenium solve for treatment and so he it's some sort of skin condition that is capable of spreading that itches that she suffered from for several years that he had this medication to tre and so one thing we do know about asking conditions that are treated at red onion from earlier days to power where additional court recognize that red onion itself does not treat conditions unless they burn or itch they have a prison policy do think that those periods are sufficient to find a violation here and so we are relying on the totality of those periods where there was a six week in a seven week i could total denial of showers and i just as that also even intermittently during eighty  the procedures to access that state created substantive right are adequate under the due process clause itself and so that is the three year you know standard i waiting factors the private interest the risk  it being a general population now is able to access all of the showers that he thinks that he requires is even better be the level guaranteed to other inmates in solitary he was only getting eight a te it's really the question of source of the right thing is there any reason for us to even address the much broader issue of due process if we agree with you on the a and then i there's no need for this court to do so i certainly have sufficient to reach and the only reason it treated these two defendants differently was because if one can find one and two the other one didn't respond and so are you willing to stand on your pleadings with regard to defendant stay and brewer yes we are  my name is pretty jones and i'm here today on behalf of defendant believes because we're very has indicated that he's willing to stand on his existing pleadings as to officers day and for we agree that this court has jurisdiction to hear the merits of his appeal shifting for that reason to the merits i'd like to start out with rimi points st rivera cannot satisfy the prerequisites for equitable really because he is no longer subject to the policies that he challenges and cannot show recurrence as to him ok now what about though our recent decision in order versus clarke i mean we have to look at the overall picture don't we and the likelihood that these conditions could know certainly a person could get into solitary for reasons other than misconduct couldn't pay for safety issues if they need to be segregated from bob violent activity or something so it's not necessarily his misconduct that would end him back up in there don't we have to have development in the record here before we can say that this is a condition that's not to recur under porter versus clark  that's true your honor and it is there are so two ways that one can end up in segregated confinement although i'm not positive that one could end up in intensive management as a result of a protective i think largely that happens because of rules challenging restrictions at his current level of confinement and during the pendency of the litigation he was removed from that level and put in a last restrictive housing environment and what the court said is that because recur largely turns on this question of whether the plaintiffs i mean the ages and violations of prison policy we don't assume that someone is going to do that and thereby put themselves in the position of being subject to the same policies again and i think that's also consistent with what the supreme court has done in a series of jesus like rizzo and lyons where we're kind of the challenge of action is contingent on some sort of adverse interaction with this long sort of misconduct right or the here arguing about something it's got a simple obvious and really cost free remedy so why have to it well your honor i want to make one point with respect to the signs that rivera alleges that he put out a specific leave that i don't know i don't want to argue what he did and what he didn't do right i'm saying there is a simple cost neutral ready make an announcement sold do something the lad why not do it why are we here arguing it and you know turning through hundreds of pages of paper so your honor i guess i would take issue with the premise that the officers aren't making an announcement and i don't read rivera's brief as alleging that they are doing something and when i was my st pretty face to a lot of things allowed i mean i used to represent a number of criminal defendants and they do a lot of things  i know that so i mean they could do this one loudly as well why not well your honor the reason the policy exists as it does and it does permit officers to blow a whistle so that is something i am not sort of within the bounds of the policy as written but the reason why the policy is as it is and i think the sort of crux of his complaint is that it doesn't require i'm officers to wake someone up if they walk by their science but you're saying see what i'm hearing from you is you've read a little gate this a whistle and that just kind of defies common sense to me you with all due respect you and i think that the officers again they have the option of blowing the whistle and but i don't i actually don't think the blood just urge you to consider to sleep in your ass and want to question when they're asleep they don't have a meaningful opportunity to answer the question i don't disagree with that but the policy is designed to wake him it's up that's why there's an audible announcement at the outside and that's why there is engagement with the inmates as the officers walk by and take the list prices and i think one of the best evidence of how the process is actually working in practice comes in rivera's own pleadings where you see that he alleges the other inmates and his cell block actually are taking advantage of shower and recreation opportunities that's the basis for his original equal protection violation claim and so again i think what that shows you is that the us isn't designed as an artist to defraud doesn't that indicate anyone this guy wants picture so yeah i do want to address the notes i'm st of all all of the notes if you look at the citations in the record they all post date the conduct that's at issue here but i think more importantly when he talks about leaving notes on his cell he's talking about leaving notes after the list process has already completed when people are out taking inmates to the shower and recreation areas and that's the problem if rivera had put a note on his cell during the last process that i actually think there's every reason to believe that officers would take that as an indication that he's interested in these opportunities the judge here here we are would rather continue the policy to just drop the word your honor i would like to point the court to the substance of the complaints because i do think having written a bunch of grievances that says hey i'm asleep no one's making out this is unfair i can't express my desire sharon recreate if i am asleep if that had been the substance of his grievance i think we would have a very different case but if you actually look at the substance of his grievances it's not about that it's about people intentionally depriving of showers it's about officers retaliating against him and actually not a single one of his grievances mentions sleep it's actually only in response that he gets a response back from the officers that say you're not being intentionally deprived or sheriff you're being deprived because you're asleep and the officers ok i understand his intuition that he's asleep and so they should know that means he's not given a meaningful opportunity but the officers have no way of knowing if or various asleep because he wasn't awoken at all or because he went back to sleep because he's not interested because he doesn't feel like confined that day and again this is a case that requires the court to find deliberate indifference and unless his grievances actually refer to the policy that he sort of narr has appealed to here there is nothing in the record to show that the officers were deliberately indifferent to a problem with the procedures that were implemented as opposed to various other problems that rivera appears to have had with the officers that's a world your i agree that there are we can always sort of i hypothesize better ways to do this but i think that's part of why this court has said that the critically doesn't sort of get so there is a significantly higher proportion of inmates housed in various sort of levels of segregated confinement and the general population is significantly smaller but again i think that's part of the reason why are very typical i mean well i think it's shows why there are administrative difficulties that are unique to red onion because a lot of things have to happen on an individual basis  i'm not sure your honor and again i don't know that a whistle would really resolve rivera's problem here because again if the point is that there are some inmates who are particularly hard sleepers i think the only way that an officer could truly know that someone is awake would be to require some sort of verbal or physical reaction from the inmate and they get into a situation where some inmates won't respond and what is the officer supposed to do and if the score says you have to ensure that every inmate is awake then ultimately what you're saying is that the officers are going to have to enter the cell and physically rouse someone in the risks of that are sort of i think obvious on its face and that's why again the policy is the way that it is and why it doesn't require officers to get some sort of reaction from the indians i'd also like to turn a little bit to qualified immunity and specifically the court's decision in suite because that is what rivera points primarily to as the foundation of his clearly established right here and i don't think that it can serve that purpose for at least four reasons st sweet is a case about intentional limitations on the number of exercise and shower opportunities it is not a case about whether the procedures attached to those opportunities are quote unquote meaningful and where that line falls the case but are you sure you're asking us to decide the issue of qualified immunity in the st instance yes your honor we think the easie rather the earth that's correct your honor this argument was made to the district court and the district court chose to decide the case on the merits and we think that the sort of judicially i cautioned way of resolving it would be to decide this case and decide the qualified immunity issue in part because again there is not a single case in this court that deals with a situation challenging procedures i mean it's hard to think that what they did here opportunity that is somewhat act therefore to express his refusal your honor i think one thing that's important term member about this case is that you have different officers compiling the list and different officers taking inmates to and from the sharon recreation areas but you also have different officers compiling the list on different days and so just because an officer looks back and sees you know rivera has denied for a series of days he doesn't have any indication as to why and it is perfectly possible that an inmate would sort of for reasons of protest decide that he doesn't want to shower for a period or not be on the record it does work that well we're i think it's sort of common knowledge that if you get all you see all the others are having front of him is a prison send it back for development of the record when you say we don't know the other people in solitary we don't know whether they were similarly did not use the outlier or used the norm i mean don't don't those facts need to be developed in order to properly dispose of this claim no your honor because here i don't think this is a situation where the officers sort of have one version of the facts and rivera has another i think the facts that rivera contradicted but i'm talking about missing facts in other words the baseline population of other people in solitary if we don't have that information then it seems to me i mean we need to look at the law but we also need to have some sense of what the facts were on which we're we're basing that legal analysis and others were to see you know fire or is this happening to everybody in the prison knew about and turned their head that would make a difference for qualified immunity wouldn't it no your honor because again this court has never addressed the question of whether procedure is in adequate because there because it inherently has some risk of depriving people of shar effort to to get into the shower i mean a doctor had prescribed that he needed to wash this medication off the doctor was assuming that he was going to get showers because the doctor said policy not to treat the running no you're on a rivera was receiving treatment he was able to access a doctor and he was able to access his medicated cream so the only question was whether he was able to shower you know where the treatment was washed off that's but what the court made clear in gordon is that medical deliberate and deference requires knowledge just not of the underlying medical condition but also that a failure to treat is going to result in a serious problem for this person and i think in the context   is the there's an obvious risk there and the officers or the defendants in question there had all her id's of notice from the form of explicit notice by the inmate to the fact that they had written the policy and procedures that actually discussed the consequences of not treating habitate s and again there the then there was an express policy not to treat a certain subset of inmates with this disease here that's not the case at all because again the question isn't whether officers have intentionally said rivera you can't wash i think what's important here is that rivera did have the option to wash off his solution in his cell there's no allegation whatsoever that he didn't have running water or was unable to access a cloth or some sort right there we don't have anything  staff that he is unable to access showers and as a result his frash is getting worse and he actually expressly asked them to give him some sort of no that he can put on his door that says i am for scribe showers for my medical condition and presumably because this problem is recurring they don't do that and i think that suggests that the medical professionals did not actually think that he couldn't achieve this direction to wash off his solution in his sound he wasn't actually perscribe s infer that from their lack of response to his requests for showers yes your honor i believe so what do you think i'm sure the refusal to grant sharma recreation seems to me to become even more important and to him why there is a meaningful offer to  opportunities i think that point the court has made clear but again this is not a case of intentional deprivation this is a case of procedures which are alleged to have a risk occasionally depriving someone of shower and recreation opportunities and those are to the six week period one thing is that rivera on certain days with and since july that is sort of the crux of this six week period and were doesn't identify the officers that are alleged to have deprived him of shower and recreation approbation that they did not actually have any part in so again and i also think that frankly the record in this case is quite messy as to whether the deprivations at issue are the result of his inability to wake up or some other problems that he was having with officers he has a variety of complaints including that he was eating breakfast when the list process was happening and the officers didn't return back to him to ask him when he wasn't eating again  was telling officers he wanted showers and recreation and that they never the last wrote refusal but again it doesn't seem to be his theory of the case on appeal he has limited his theory today to the prestigious role challenge  reasonable station to be made between those quite so i would direct the court to it's hardly a package deal and how we dispose the clyde i don't think they're a package deal i think there are different standards but as to the atypical hardship standard and how it relates to the seriousness of the deprivation i do think that there is significant overlap there and i would point the court to its decision in prieta where it discusses how those two standards  overlap significantly if not entirely so to these on the score things that the deprivation is significantly serious for purposes of the th amendment i do think that it's most likely i would also think that there is an atypical hardship here but again that doesn't mean that there's a liberty interest there's a step before you get to a typical hardship and that i think is the more problematic piece for rivera particularly when you're talking about qualified immunity because there is no case that discusses whether there's a liberty again because under the due process cause you have to find a liberty interest in some sort of statutory or other provision here he refers to the guidelines i mean the guidelines don't create a liberty interest because they are not defining terms that would be sufficient crutches necessary to access showers recreation and that was not intentional deprivation it was that he was not given the means necessary to have an opportunity to access these services and so that is quite analogous to here that the as situation for him prevented him from accessing these services additionally if there were a legitimate pina logical justification to have a certain procedure th note itself i refers to the days of the week in which showers were offered and so to the extent this report is concerned about that it can always remand on that factual question but the record here does not support that idea