action in this case the arizona special action proceedings are just such limited proceedings but it has to be in those proceedings there has to be some factual support the roughly that the prison had not violated any of his rights nor failed exercise whatever discretion they had appropriately and that was based can consider in special action proceedings are so limited and because in special action proceedings courts cannot examine the substance the reasons behind just the government officials decision making that special action proceedings are an inappropriate forum for the education of the federal constitutional right that's in that case a first and then violation was alleged the trial court sitting in special action never considered the evidence regarding the first amendment claim and the court of appeal explained that that was correct federal constitutional rights cannot be adjudicated in special action proceedings if they didn't state that they never could be today i mean here it's exact same underpinnings are obviously the same however that special action the court sitting in special action plans examined whether his eighth amendment rights were violated it couldn't go behind the stated reasons for the government official and in that court made a determination that there was insufficient evidence to support a showing that the prisoners the prison first no violated the law or any right that they were medically indifferent just because the special action court cannot decide it's a constitutional question in other words although the special action court did hold that the officials hand  perform and duty required by law but i can't keep renaming things if the facts don't go anywhere and that's i think that's that's where you're stuck on that and if the facts don't go anywhere when mr savant is claiming goes back to district court then they paper but it there's a couple areas that i think i'm concerned about first one is the district court dismissed his retaliation claim it is the evidence is there court's reasoning evident in the record i can't it seems like that money kind of got lost in the in the shuffle of everything that was going on and then the other part that i see a weakness is that why should that he had one hundred twenty days or sixty days from the days of the order or until october fourth of two thousand and four and that's if you are forty two in which to prison when he did on his free time after that it was up to him that he wasn't pro se prisoner at that point he was a guy on the street the court had warned him that he needed to serve or under rule for the action could be dismissed for  e and she was warned right up front that service was an important thing so he has sworn to that was he in custody you know he was actually got a charge here when he was in and out of custody because address changes but i believe he was released from here to say that with respect to the time within which service was required he never was in custody he was released from  s c custody on seven one l five on a new criminal charge so he committed another crime and then was tried and with return to department of corrections he was released on a on a temporary basis when he was released on in maricopa county custody part of the time and then he was back in the department of corrections in two thousand and five are pretty pleading was filed after he went back to jail is think i believe i'm trying to remember all the details of the of the dates and it's like i say there's there are a lot of dates in this case but but my point is that if he had taken this case seriously  when he was not i mean that if he had if he had done this here there are other ways he could have done it but the question is did he legally have to do it that way and you know if he if he was if it still could have been served and he was in custody at all times after that occurred when it could have been done then that that's a problem for you it could have been that or your honor but i think you believe that he did not take the initiative himself and he could have done that when he was out of prison and the court had told him right up front that it was necessary  said have yes but did he have to legally you know that's that's where we have you know where we have to be the court told him he did or is action may be dismissed under the law he it was it was all to me alternately up to him if the marshal had sent in the packets and he had not sent them back to the marshal that would have been a problem for him and it could have been dismissed on that ground so he has responsibilities in order to to make sure that the marshal followed through he was told the united states district court on two there is no cause to issue mandamus because whatever the past be as this can't be unraveled it can only be forward looking now why wouldn't that why would that bother some remedi pain that may have been inflicted prior to the time that the that the the arizona court would be looking at it to determine whether or not it should mandamus somebody or compel somebody to do something in the administr examination he interpreted the x rays he made a diagnosis and he made a recommendation and there's criticism of his recommendation and that's a debatable point i would admit but it does not rise to the level of deliberate indifference and i think the court's rather rationale that pages seventeen through nineteen of its order cited the correct case law i think you counsel your time has surmounted should rely on the united states marshal second with regard to the first amendment retaliation claim the district court did acknowledge that portions of his complaint referred to the first amendment suggested that the defendant