erred in dismissing that claim that my judgment on world i'll be thinking about that means there's just one contested issue remaining with appeal and that is whether james corrigan stay created danger claim is barred by the two year statute of limitation on that i have two don't make you put it put it better they may not make a good argument about why he didn't state a claim but i'm not sure they conceded he stated your claim so the let me just ask you this if we agree with you that a claim was stated on i believe one more or less i can't imagine why they did that but he did it now you're up here saying you should we should reverse that decision and i kind of think you're right the state has other defenses it might make  didn't have to make them in that summary judgment motion it preserve the answer the defense or say answer and it's a little bit fact intensive why don't we just say district court you goofed take this back at the state as are the defense is a can but not to use their case law that says that you must raise on a summary judgment motion all your defenses see that what they're arguing is that the record allows us to affirm on a basis not reached by the court below but i'm unaware of any case law that says you wave your statute of limitations defense by not raising it in a summary judgment motion is there any case law that says that new batch of limitations arguments are affirmative defenses questions that must make of course they move for summary judgment on the basis of the statute of limitations or can they just save it and raise it later on saying it's not like one of those defenses that must be raised in a rule twelve have i would argue that would have prejudiced james cork and to have rate that argument for the first time at trial i mean the touch of humor had at least two opportunities to raise this argument and the and his motion to dismiss and that round of free thing we clearly presented a state created danger claim and at that point the detective kima responded with various arguments as to why our claim should not be allowed to go forward but didn't argue that it was time barred meanwhile  detective kima did argue that other claims were time barred but not this one and then again we go move to summary judgment and again we very clearly say that that we are pressing if they could a danger claim and again detect and they go and they beaten once right if he knew that was because or should have known it was because the police released his identity to the to his house was being searched i forget h for the shooting they're doing may have been but the question is whether he knew or should have known at that point that the that the county had violated his rights i'm not sure what the answer is to that and that's why i'm a little bit reluctant for us to take it up and for the first time would it be i mean i'm sorry no your honor i upgrade your what your question underscores is that there are a lot of factual questions that would be very problematic for this court to resolve on appeal in addition to the very difficult factual question of when someone reasonably should know that they're injured there may be equitable tolling argument james corrigan was incarcerated at various periods in between when the search took place and when he found his client none of those none of those are in the if you're honest if you if you are not inclined to say that when he was shot i would at least ask for every man so that the lower court can dig into some of these more complicated factual question why why do you think the claim accru the time of the shooting i see a judge here which is point that in theory you could say to someone in your client's shoes the very first time you suffered harm as a result of the state create a danger you got to bring the suit then and for all future harm going forward why do you think you can kind of because i think you've now conceded that the claim based on the jail being that's out because that was time so why do you get a separate accrual for this claim related to the shooting maybe you can explain your position on the wire at that at the time that james clark and learned that this search warrant had been left on the dining room table his mentality was i've got this his brother caught him and he denied the allegations he said that absolutely was not me of the police are out to get me they've forged these documents and he thought in his mind that he would be able to convince others that he had not acted as a confidential informant and that the police had forged these documents and in his own words the police and alcove are known for doing shady things like this and he thought it would be an easy case to make so it's not clear from the record that he knew he was injured in that moment ok so you're alluding to the beating your position then is that the reason you get to start the clock as of the time of the shooting is that that's the first harm that your client knew was actually connected to the state created danger t who assaulted him in jail then yes cortez the person whose house was searched yes but then the record just doesn't reflect what he said when he assaulted him yeah yeah but wouldn't that be relevant to a statute of limitations determination what if he said you snitch that's why i'm here then then he would have known at the time at least that he'd been placed in danger i'm not sure that that defeats your statu place me in danger a claim right that's correct i've read this complaint and it's not perfect but it's got plenty of facts which would support such a claim and each count as every good lawyer does incorporates by reference all the allegations made before so tell me why there's no no quit is not the essence of the claim being made here no it's not your honor because counsel is fully aware at the time that they're writing this complaint that they miss the statute of limitations forget the statute of limitations my question is whether or not this complaint alleges that the that the defendant unnecessarily put me in danger by putting my name on the search warrant affidavit does not allege that i don't believe it alleges that specifically it alleges as a predicate fact to the actual claim being litigated which was an eighth amendment claim related to mr page who shot mr corrigan eventually be being placed in a set jail cell while they were incarcerated months later those were all predicate facts that that council used to establish the eighth amendment claim and knowledge upon elko county to not have housed them together that was the entire basis i agree that those facts are all over the complaint but those facts if you read them are artfully pled to establish that predicate fact or knowledge of the jailers related to the eighth amendment claim council then and despite the footnote in the in the briefing in the reply briefing appellants trial counsel admitted in their pleading on the objection to the masters recommendation that this case the federal case his premise s upon the jail cell incarceration they continue on with the facts about he was shot in this but they argue that specifically to establish that at the time that they were subsequently housed together in the jail that they should have had knowledge not to do that they were in my opinion in reading that complaint in its totality in its fairness and in the dates and  circumstances of the case they played it artfully that way to use those facts knowing that the statute of limitation had already expired based upon the people how do you know or change them in that violation how do you know that they knew that there's something in the record then negated when counsel filed a complaint with counsel knew that the status of limitations had run if you look at the record the controlling complaint is the amended complaint  prior to that the original complaint was subjected to a motion to dismiss and various causes of action including a cause of action based solely upon the shooting of page which is now what they're trying to  dismissed without prejudice for them to bring it back when they brought the claim back the complaint changes it doesn't allege that as a cause of action it i can only infer at that point it did it on purpose and then you know years later in their objection to the master's recommendation on the motion for summary judgment order is when they admit that those that that night the federal claim is a eighth amendment claim based upon conditions of confinement and they shouldn't have put corgan and page in the same jail cell ok but months later my question was how did you know the news that's limitations run what you're saying extrapolating from what happened that's what occurred there's nothing in the record where they said don't do the statue of limitations as rather no correspondence or nothing like that that if that is correct you know that is correct so let's assume for a moment  they've stated a claim what should we do if you make that assumption there is a potential factual determination on the statute of limitations and there may even be there may even be to be fair your side your summary judgment motion may be may be correct on other grounds and would you that that we you know there's no evidence that we subjected you unnecessarily to danger putting your name in a search warrant is ok but the magistrate judge in the district court never reached those issues you just said he's not making a hundred eighty three claim under that that's correct your honor so we would say guarded the central lactations i think this record is clear that the search warrant in this case was issued and served on august tenth of two thousand and twelve it is also clear from this record that it was on that exact date that mr corrigan was informed by both his brother and his mother that he had been outed as a snitch under the kennedy standard for a claim based upon state created danger the elements at that point had been established assuming they all existed so he might he must sue right away or within two years within two years i was the man to be made change the facts in this case all of them to me tell you what troubles me about that issue maybe one reason i'd like to duck it if i can is that let's assume your out it is a snitch and then five years later somebody shoots you you're saying you should have brought the suit before you suffered any injury iran or under one thousand nine hundred eighty three and the precedent and fourth amendment cases and eighth amendment cases the injury that occur is the constitutional injury what do you do for but you can't sue the officers at that point for for the for the damage that results which is your eventual shooting so what do what do we do with that eventual shooting later they have to bring a separate suit for you say he should have known when he knew his name was in the warrant and brought the suit within two years and let's accept that for a moment five years but he can't seek damages for something that hasn't happened yet in that suit five years later somebody a guy any properly taught so he can't get damages for the shooting then in your view even if he brings the case timely if your honor accepts that policy that legal rationale what your honor is saying is one act definite detective kima or whoever performs that act creates forever liability for a damage that's happened to him or that could happen to him in the future statute of limitations on a constitutional violation begins to run the day the violation occurred and the violation as they allege it i'm not admitting that there was but the as alleged the violation occurred accrued and not only did he have constructive he had dispute whether he's an informant whether he's just a witness all sorts of things he was clear that he was concerned about his safety for cooperating and he knew at the time that once he came out or it was out of that he had snatched that he was in danger and that's when his cause of action would have to accrue every element has been met to hold otherwise would basically hold that action of chemo or any other officer open in perpetuity just waiting for someone else to act on it and the statute of limitations is to put a time limit on the actions of the person taking the actions so i would say he didn't have a claim and th waiver in other words it doesn't mean you can't raise the statute of limitations at some subsequent point that just means ordinarily we don't hear arguments that were that they didn't raise it below it wasn't ruled on below is a better way to put it right or and as a court of appeal by the record can we take that into account in determining whether or not a waiver has occurred the fact that they didn't raise it in this particular nine hundred eighty three action but did raise in other alleged causes of action arising out of the same instance i think that certainly strengthens the labor argument if they knew to argue it at other claims that statute of limitations was on their mind at th that he's been playing my breeder for a lawyer so let me play mind reader for lawyers what if the state said hey there are fact questions under statute of limitation with respect to the nine hundred eighty three claim so we won't press a summary judgment motion on it but we don't think there's fact questions with respect to the others not that's not their position today but i'm just making a different trial or is he required nonetheless to bring a summary judgment motion on the on the nine the counties argument that the way this case was actually litigated all he was complaining about was being put in the same jail cell as page at some point and if that was the claim includes all of the facts that would be relevant to the state could a danger claim premised on the shooting that claim was very clearly pressed in our opposition to the motion for summary judgment where we specifically said that we're advancing a stake or a danger claim under the fourteenth is this era when you look at the fourth claim for relief it seems to say you violated my constitutional rights by putting me in the same cell with this guy the theory that you're now are serving is that you might have the constitutional rights where by holding them the question at stablished supreme court case law johnson says that a plaintiff may not plead legal theories in his or her complaint so we're not asking for an exception to any general role the general rule is that a plaintiff does not need to include legal theories in a complaint and the reason is that courts understand that and it's honey may not be able to know exactly what legal theories he or she should be pressing  at such early stages and litigation and that discovery is the place to really investigate the facts and issues and try to kind of develop what the proper legal theories will be and that's what we see happen in this case because in our opposition to the motion for summary judgment after discovery is closed we knew that we had a very strong state pretty dangerous claim and and press that claim at that point