court i'm john cores and with the wake and under local rule forty six a it's my pleasure to introduce the two third year law students who have been working on this case first that taylor and also don morgan who will be doing the may please the court this case is about whether a state prisoner who has been completely excluded from all in prison work programs based solely on his medical stated a claim upon which belief can be granted in his complaint to the district court  the eastern district of virginia either under the equal protection clause of the fourteenth amendment united states constitution or title two of the americans with disabilities act now the district court erred in dismissing mr complaint with prejudice first when it dismissed its constitutional claim solely under due process analysis and mr had clearly put in equal protection when the district court then went on to dismiss mr title to claim based on sovereign immunity any analysis the dismissal was solely on the grounds of states are an immunity which does not apply to injunct prospect of injunctive relief in state officials under ex parte young and finally it was error for the district court to dismiss with prejudice even if mr you only had a damage claim against the individuals in the court dismissed or qualified immunity wouldn't that be with prejudice if the district court determined as a matter of law that the defendants were entitled to qualify whether the lighter along when i'm suppose just in that it's based on the nature of your claim and your claim is a damage claim against the individuals they have and the court finds as qualified immunity then that dismissal would be with prejudice witness that's correct your honor however here there was a claim for  it and in addition to that the district court did not address qualified and dismissed on the grounds of state sovereign immunity because title two because title two only abrogate states are from unity to the extent that the conduct is unconstitutional because it dismissed mr fact counties constitutional claim under an improper analysis so under due process not under equal protection it then dismissed his entire title to claim just based on that ground so county did state a claim upon which relief can be granted under the equal protection clause to the of the fourteenth amendment to the united states constitution no the equal protection clause as you know protects against government discrimination especially looking through the lens of him being a pro se litigant which means that his pleadings are liberally construed and have to be held to a less stringent standard in pleadings drafted by attorneys he played enough facts to show both of those at least enough to go forward disabled but we know what language of that classification is is there some war regulation that sets forth that information is not in the record your honor and well the virginia department of corrections operating procedures set out the procedure for sending an inmate to a doctor to get a medical bus station the criteria for those classifications are not in those operating procedures they appear to be contained in a medical and nursing guidelines set of documents that are not available to the public classified before he went to this recent hospital stay based on the record yes he alleges and i believe it's paragraph twenty nine of the complaint that there was no change to his medical advice while i know that but he went to the hospital came back and they  wouldn't let him have a job told they he got a classified right i believe it was he classified i believe from the complaint that he was classified as medical classification deep both before and after that metal boeing or he was doing the jobs he was doing various jobs with the declassification and then after he was denied those i believe that's the case your honor yes could crack clarify one of the things and you indicated that the  p forty one to the governing documents are in the record so you wouldn't know for whom you may not know it may not be in the record for instance whether or not the medical personnel making the classification are responding to court to take judicial notice of those but the criteria for medical classification d don't aren't in those documents they're in another set of documents that we don't we were available to the public and so those would need to come out and discovery  your honor because the other parts of the damage claim the harder for you to advance that's correct your honor however i believe that he stated he did state a claim under the equal protection clause and because i understand that i understand that argument and the co didn't address that at all it just goes to process that's correct and they've been transferred but now he has been transferred to augusta correctional who is over these are different so that's correct  whether he subject to the same operating procedures i believe there's enough in the record that shows that it's more that there's more than a reasonable expectation that this is going to be applied in the same fashion the virginia department of corrections operating procedures it specifically as a forty one point two is also in effect at augusta the text of the procedure itself states that this procedure is in effect at all virginia department of corrections facility and further because it's the application of this there's a lot of information or don't quite have i would agree your honor there there was never an answer filed because this was dismissed under that screening statute and so there is a lot of information that just isn't in the record that would come out in the preliminary you know stages of looting medical classification as well as other and in addition your honors at the very least defendant court and one of the name defendants is the director of the virginia department of corrections so by virtue of that position he does have ultimate control over the application of these procedures both at augusta and able to find any cases squarely present in the question this circuit cases in the tenth circuit the seventh circuit in the northern district of iowa have held that these factors really present some issues of fact or factual disputes that are better addressed at the summary judgment stage or  trial and the one of the one of those that i really would like to address today is the impact of the nomination of prison resources you know obviously there's concern that the federal court especially doesn't that we consider all that i mean your argument is we need to develop this and not only develop it with respect to what was disposed of but with respect to the claims that word addressed and it would be hard for us now to get into policy considerations that minute to whether you your point of view where the beginning and you want to chance to rush it out exact your argument exactly but the point i want to make about that factor isn't that it does positively weighs in his favor but as as of right now there is enough in the record to makes it over that screening statute and gets to go forward to have discovery and to have an answer file thank you so that it the last point i'd like to make it if i may your honor is that even if th then its decision would be on the it would be with prejudice it would never be without prejudice because he's not going to give him another shot of there's a unity your argument is that the unit doesn't apply or wasn't addressed but or wasn't his claims i was going but my point is that you can't argue that they were thrown into the with prejudice part your argument is the court was wrong in applying the immunity and not addressing old subject that's correct your honor however because this court couldn't affirm work in reverse for any reason supported by the record i just wanted to make clear that even if you find that he didn't state a claim of equal protection clause where the injunctive relief is is  other words if the court dismissed this case correctly it's going to be with prejudice and that's where the court looked at the your problem is that number one the court was wrong and number two the court didn't dress all your stage well it doesn't address whether it should have been with prejudice because if the court was correct or thought it was correct it's going to do it with prejudice i mean if they're mean and if the courts right about immunity didn't know to include and here and there are facts in the in mr fact monies brief to this court such as his diagnosis that would have made an equal protection claim clear on the face of the complaint that might have allowed it to get over that one nine hundred fifty eight he was treated differently from other similarly situated individual they may do find similarly how do you define similar research your honor we believe here in this case if you needed to allege he was treated differently from other medical classification d inmates in his own a co person can't come to court and say i'm black and i was fired because i was black and i've been in state and equal protection laws your honor it could under certain circumstances this man says they claim me as disabled but i've been working and i and all the sudden they stop me from working now isn't that about the same thing they decide they're treated in a disabled person differently than other disabled persons perhaps we don't know the classification  well your honor you certainly have the right to address it because the court in a firm for any basis in the record and we would posit that there is ample evidence in the record that or you're right as a theoretical matter but here we have a situation a fairly unusual situation where the guy apparently policy applies we only know that under the expressed terms of the operating procedures it doesn't apply across the board it's not a mandatory policy there's just there's discretion to not apply the class the very honor and in preparing for the argument we didn't undertake an extensive review as we are limited to the record as just as you can it does strike you as peculiar that you have an employment program in the department of corrections as intended to help prisoners rehabilitate to get there a little bit of stability in their lives to get some purpose the i'm a little pocket change and this man is working for all these years and then all of sudden he's cut off with no he claims no change in his medical condition let's assume that's true which we must doesn't that isn't there something awry and that's in that actual scenario it seems to me the institution should be favoring this man and letting them try if you can't do it that's another issue but it seems to me he was doing it he got satisfactory reports but your honor i can't speak as we say as you say from the is contrary to the complaint that he can't work well your argument is and they're in there it looks like a mindless application every application did for a job i think there's about three of them they say disqualified classification b with automatic their well your honor we think that on the record because or if we do presume that a prison officials do act reasonably and in here that one a complaint is filed against them that says they didn't act but then we have to take that as true don't we applied inconsistently quite apart from the pop back the policy might be too broad but this is just one of the considerations to be taken into now but his allegations i understand them as he is disabled he was classified he worked two or three different jobs he listed them for years he went to the hospital for one day stayed overnight on the fourteenth and home and they told him he had to reapply the game a class they said you can't get a job because your c true and then you could talk about the fact right your honor so as i understand his complaint taken as favorably to him as i am is legit he is permanently barred from office new employment on account of his medical classification did it say that he said just the opposite he said i had a classification d and i was working right so there was something for all these years as a classification day he was allowed to work so the classification probably didn't prohibit him it was one factor that they consi and then something changed on the single day right toronto we don't know what changed on that day he could have been working by mistake there isn't evidence of it right or not says i didn't have any change in medical condition right he could have either we do though he is he  we don't know he has met it's been medical classification t the whole time as that's the best way to read his complaint and if he was working as a janitor before why not let him continue working as a janitor what's the reason you can think of that he shouldn't continue if there was no change in medical condition well your honor the the reason that we can think of is that the apartment has the right to apply a broad policy you're just because one inmate and he acknowledges in his brief there probably are some jobs he cannot do in prison so what mr falk and you would like to have is an individual and that would that would be inconsistent with the prisons own operating policy is that isn't that a problem now your operating procedure a forty one point two sets out what what i would classify as died one may provide a variety of factors that the work program assignment review or and consider here that's defendant spencer and she is allowed to account for security level medical classification offense history so as understand this on a bigger question and this is his equal protection he says the prisoners in the institution can work at various jobs these said he worked at various jobs after he came back to the hospital he was them i had to work because of potentially issues with arbitrary line drawing if you did have to medical classification d inmates and the if and or worry represents to classify the maids on day one he's working and on day three he's not working and he says there's no change in my medical condition right track or the could have been a change in prison policy and it just because i could be an equal protection violation if it's not rational your honor he offers that term versus actually in your honor use the net makes you think it's rational right now based on his obligation i think it's rational for department officials to rely on a doctor's independent medical last any time they change even though they infringe on equal protection clause because it's rational we just prove it well your honor it's rational basis in this case he argues the term versus athletes framework applies or should we know why they change their mind if they change their policy you can even say they changed the policy your honor i agree that it would be more helpful if we had a fuller record in this case  shower he's not cleaning or meals a day is not claiming things that we see a lot of this guy's claiming i was working and now they took it away from me i'm trying my best they have a policy to help out prisoners to give them jobs and my medical i went to the hospital came back the ministers of medicine or something came back in the from the same condition and they don't let me work yes  classification in compas is whether it even speaks to ability to work and if it speaks to ability to work all categories of jobs or just some jobs it's just we're absolutely blind here on terms in terms of what the medical classification means all we know is at least from the operating whatever they are they can be ignored yes honor he has been transferred from our tank correctional center because it's now closed all the allegations in his complaint all the factual allegations relate to the actions of how it doesn't state why policy operating procedure a forty one point two does apply across all of the uniform and i we don't know that they buy them you know we don't know it but we would expect it would we if you have a regulation that applies to all the institutions you could have the regulation applies to all the institutions and the defendant clark is in just no your honor but under the would need to be narrowly tailored here because all of his allegations relate to the actions of the ample of individuals who just wants the he wants the policy to be applied in a manner that serves been a logical interest and and guidelines for the prison officials at each prison and account for their local policies but what's really important here is that we don't actually know what's happening at augusta because although he pled that he had been transferred it is in his complaint that you left out and he does not make any allegation that he is suffering from the same treatment at augusta correctional center and in the event that he is he can retrieve the process there are points of the specific facts at augusta and bring his claim again on the injunctive relief side on  on the damages side qualified immunity should apply simply because no court is ever held the department officials would violate the equal protection clause by relying on a doctor's assigned medical plan or the doctor's medical associations that he's disabled because he's blind or deaf he's he's deaf and he's there for to say and so they send that over and the policy says you can take that into account there are other factors and he says i'm deaf but i can still claim that common area i can still serve food those are the things he was doing now it's a problem with that your honor as there may not be any problem with it but in the present violent prison officials are entitled to make that judgment opposing everything in your favor instead of taking all the inference is in his favor and accepting his allegations is true and at this stage we're not title to that article where your honor i would all assuming in your hypothetical that it was an inmate who suffered the side of deaf or blind and could potentially perform some of these tasks if even if that is all true it's still rational for department officials to conclude that in the prison setting it's easier to blanket least screen certain categories of individuals based on how he doctor has assigned their medical plans change all right how about that how about you have a prisoner who's declared that deep because he's deaf and he works for five years death at jobs within the prison goes t your honor the partner has the right to change their policies and they could decide that they are as you are alleging they changed their policy your honor we don't know ok then you can argue that the other words this record does not support the claim by you that they change their policy your honor it would be rational for the department to conclude only on day one that he could work that you could see as he suffered from a deafness disability for example and then conclude on day three that when you needed to apply for a new job because as a district court noted in its opinion you prison applied the doctor's classification be to them i am with john when earlier they allowed an appetite in the classification d doesn't automatically disqualify under the policy consideration discovery and so it's pretty clear that they're entitled to qualified immunity i think we should and i was with this court is entitled to do so and i'd like to just in that being address the supplemental authority the opposing counsel file and you know there was an eighth circuit case where the court reached to a spontaneous reached a qualified immunity i just wanted to point out that that dismissal where the court raised qualified immunity by themselves was without prejudice and by my last  this court to appoint karen from know your honor merely that it's helpful you want jess you want to yes you like that i'd like to suggest you would like a broad hint that would be a good idea absolutely you could just go down or go i this is very helpful to the court to the disposition of the issues and we want to recognize your good service to come down and we counsel take a short