good morning judges may it please the court money was raining supa and i represent the plaintiff in this case some concessions will make this process more efficient so excuse me if i read here because i want to be precise we have the decision in a box and to the extent that the government argued that the complaint alleged a fourth amendment malicious prosecution claim and i resisted arguing it could also entail a fifth amendment due process claim for purposes of bevan's i was incorrect i also agree with the government that abbas the merits reconsiderations of certain begins a causes of action in this matter claims this is despite the fact that none of the motions to dismiss nor the court's decision made any mention of the special factor analysis as such has never been briefed further following the following claims are withdrawn from consideration on this appeal not the allegations came contained therein but the claims the first claim for release deprivation of federal civil rights is withdrawn fourth claim for relief  denial of a constitutional right to fair trial that's withdrawn the six claim for relief conspiracy to violate plaintiff's civil rights that is withdrawn the eighth crying for relief deliberate indifference to training that is withdrawn sorry for having to do it here but with the abbassi case and we reconsideration of the various issues the decision was made with your boss the case i just learned of it i'm sorry i should have been looking for what's left is the third claim as the bivins claims are concerned a third claim for relief malicious prosecution the fifth claim for relief induceme false testimony and the seventh claim for relief stigma plus there is also the federal tort claim act abuse of process and there's also a request to amend the federal tort claim act of malicious prosecution claim complaint pleads relevant facts in detail and abundance relying a large part on evidence that cited two quoted and source of the pleading is somewhat sketchy when it comes to some of the legal components but when you look at all four corners of the second amended complaint which we must as well as the pleadings do incorporation we have a solid claim for malicious prosecution violates the fourth amendment is a traditional think the district court was wrong we've read so many facts from so many sources elicit a page five and six of the primary brief to say in problems that were identified with respect to the f b i defendants there was a concern about whether you pleaded there's sufficient involvement in the initiation of the criminal proceeding and with respect to the prosecutors there was a concern as to whether he pled facts showing a lack of probable cause tell us why there prompt why that shouldn't concern us the f b i agents initiated this by hand in hand fabricating evidence taking innocuous evidence fabricating it and spinning it into inculpatory evidence and that's so when you're fabricating where you're creating false or what was the what's the basis for saying that they at the prosecution rather than the prosecutors just so i know what it is in the complaint that we're supposed to be focusing on when you fabricate evidence you initiate and the case that supports  affirm the dismissal simply on the grounds of its violation of rule eight which requires as short plain statement of the grounds for the court's jurisdiction and a short plain statement showing that the pleaders entitle to believe this to skim plate was a horrendous gigantic mess and while the district court did not rely on that in all respects why isn't that a sufficient basis but miserable draftsmanship is not necessarily a basis to dismiss the complaint but that being in a hundred fifteen page monstrosity which the judge i warned you about and gave you two opportunities to re plete saying please comply with the rule eight and the complaint never got any shorter or a simpler more comprehensible and why should a court have to wrestle with a complaint like that when the rule explicitly says that you've got to do otherwise point play an awful lot of facts because there were an awful lot of facts and there's it with the heightened standard now this time billy it will stand with which seems to have been u to actually go beyond what's necessary to plead fraud there was a fear that we wouldn't get enough facts in so there was a lot of facts and a lot of factual pled it was a complex case i think it i think it it's not so much the size it's perhaps the organization of the complaint and i think in what i talked about legal components i think that's that's where it gets it gets a little sketchy but nevertheless i think it's it's it's it's a monumental task to read it but there is it's definitely clear enough we know what happened here with factual detail so the draftsmanship maybe it may be miserable but that's not necessarily why i don't think that's grounds for dismissal of a man's claim especially a man who's who's been subjected to what dr shapiro has been subjected to and that case we should have in order to amend and stringently ordered the way to get it right this last time were they were ordered to amend and get it right and comply with r twice and things were cut and things were added defendants were added as again this disc implant was a product of an ongoing investigation and the more we found the more things had to be added and  something subtracted in it came out it came out too long but i still think it's clear enough to understand it's it's certainly not something that you'd want to repeat again but it's definitely clear enough and i think the district judge knew what was going on as evidenced by the decision to take it back to you pleading on the f b i agents you allege that they gathered what they knew to be false information that's a conclusion what fa to support that because that wasn't clear to me we go through everything from the nic be clear view and how it was incorporated into agent affidavits in support of search warrant applications to give you have to give facts after it to to support a conclusion that they gathered what they knew to be false information they're conducting an investigation and they're there obtaining information that turns out not to be correct not evidence that suggests they gathered what they knew to be false information what is there is there anything in the  all right thank you i know you want to reserve time for rebuttal let's hear from your adversar may please the court enter crouse for the government defendants dr shapiro has not adequately alleged any constitutional violation by any of the six individual federal defendants were any tort claim against the united states the district court's  missal of shapiro's claims which ever claims remain at this point as to the government defendants should i just to turn briefly to some of the issues that were just addressed with respect to the f b i agents they absolutely initiate prosecution of dr shapiro their actions whatever actions there were discussed in the complaint were taken alongside the prosecutors there was never an allegation that they took some step and then passed the information along to the prosecutors or in any way importuned them to act so you basically agreeing that whatever defect there may have been with the prosecution with the the prosecutor defendants that's where you want to focus for that yes or no we don't believe there is any defect with the prosecution and on that if i understood you brief perfectly your argument is that they're the probable cause yes as well as the both absolute and qualified immunity is that applied to the conduct of the prosecutors and as for the supervisor defendants defendants berar and food are checked there's simply a lack of allocation of their personal involvement in any of the alleged violations mr zipper referred to fabrication of evidence we also submit as as discussed in our papers that there is no plausible allegation that any evidence was fabricated in connection with this case and your position on and what's here what's your view on why that doesn't qualify as evidence it's really not manufactured evidence or as as your honor indicated it's characterization of evidence and in fact many of the points that are actually specifically addressed from the wiretap applications for example or our reservations of fact there's not even really a discussion of characterization quoting from those wiretap applications in the complaint thank you that you have removed for sanctions please the court monday ms michael nelson i'm with you all from of ever should southern and i'll be addressing the arguments for the private defendant so i represent needs he pierce who is the executive of the government employees insurance company she and plaintiffs alleged if they're not successful against the federal government are certainly not successful against the private defendants i'm a little confused as to what claims were made against the private fund it's in light of what counsel said claims that's what's alleged against the four against the private defendants what's alleged against these board members really is nothing more than the board members were board members acting on behalf of the board c b as an organization did what it's supposed to do it brought information to governmental agencies and the government agencies are the ones that decided to seek the criminal prosecution an may have provided the information but it wasn't improper information was provided and the characterization that it was improper is just that characterization and does not survive the pleading stand with that just and the argument by asking the court to form the judgment of the district court and that it be affirmed in all kinds of its proper defendants be dismissed with prejudice imposition of sanctions against the plaintiffs for bringing what we consider to be a frivolous appeal and respond to judge the lords question earlier we did not move for sanctions before the district court because thought that everybody is entitled to their day in court but based upon the strong decision of justice of judge buchwald in the district court and the clear import of the law and the fact that twenty seven and this court inherent power to impose sanctions justifies this court taking a serious look at that hand imposing sanctions upon the plaintiff and asking them to demonstrate and show cause why  so if a privately retained somebody retains an attorney to bring an appeal the attorneys the the attorneys liable to sanction if if the appeal points i think i think as an attorney and an officer of the court it's incumbent upon the attorney to make a determination as to whether or not there is any merit to the p o and if he did mean factual  using merit you mean if that's any of faces and a legal basis for making the arguments the facts of this case when plugged into the law demonstrate that there was no merit to the case judge buchwald determined that nonetheless we are here with a lengthy appendix lengthy briefs a lot of time and money spent by my client and the other private defendants to defend what we believe to be a frivolous appeal the stop at this to court's decision thank you thank you asked the question regarding initiation of the criminal proceeding i'm relying on stokes v city of new york which actually addresses that issue in large in detail and it says a police officer maybe have maybe found to have been issued a criminal proceeding by known lee creating false information that created the basis for the prosecution and also rely on and published district court opinion fabrication at one point we draw the line so here we have a strong factual basis for bringing this appeal this man was indicted the indictment was totally unclear as to what he did wrong did wrong police for two years two years they refused to give us a feeling it's a cover up of the fact that they had nothing and from that grand jury two years we begged finally they say inflated reads they're supposed to provide the films that evidence this they promised that they're going to provide to films that evidence to be conflated reads they provide six films none of them were inflated when compared to the reports in fact when the u attorney walked in and looked at the reports they found thirty five percent of the reports showed positive findings ok that is the same amount that you would find in a symptomatic people people that did not have car accidents thirty five percent bulging disk or herniated disks just naturally this man was ruined totally ruined for two years and a lot of that between the lurid pressure releases which is still up the no fault he couldn't practice and worker's comp and insurances wouldn't accept him and in this case they said that he was a fraud going on or when in fact the bill was very big show trying the case in the you were asked about if you wanted to respond to the request that that's a motion for you to you personally to be sanctioned but your time is up i think we have the parties positions we're going to take the matter under advisement thank you very much