would like to reserve any remaining time for rebuttal the only due process issue for this court to decide is whether defendants are entitled to qualified immunity since they've already conceded that mr evans his liberty interest was implicated when they transferred him to the administrat segregation unit defendants however are not entitled to qualified immunity because it was clearly established long ago that any transfer to restrict or earn initial transfer to restrictive housing requires at least some level of due process into same mccarthy a decision from one thousand nine hundred six this court outline the basic procedures that a prison must follow after determining an inmate will be in voluntarily segregated there has to be an informal non adversary hearing that a reasonable time and notice of the charges against him or the reasons for considering segregation none of that occurred here it is undisputed that defendants did not provide mr evans with notice or basic opportunity to be heard defendant simply transferred mr  which was for snake river was first or second anyway ministre to about one to administrative then another now you argue with some facts that in this case a rose is not a rose that they were different but in fact if you look at it from the record how is this supposed to be so clear that this housing conditions change and substantially the main difference your honor is that he was in the administrative housing unit voluntarily however when he was transferred to snake river his administrative segregation unit it an involuntary transfer and for defendants to argue that it wasn't clearly established prior to brown that prison official cannot engage in this sort of conduct i e lock somebody away in segregated housing in voluntarily for one hundred forty eight days strains all you need can you point to any case that makes the distinction that you've made here and that is that at the first place he was there voluntarily and at the second place he wasn't and that's enough to t not specifically but to say that there's just this basic outline of any sort of with transfer that's involuntary and that's the basic on off that's not the case when transfers involuntary all the time getting sent from one prison to another so it can't be just that the fact he's being moved not at his request that doesn't trigger due process rights well i mean since they've conceded that a liberty with interest was implicated because of the significant atypical hardships experienced in administrative segregation and that's what triggered the due process rights and that also moreover brown decided an entirely different issue which is the case that they're heavily relying on for qualified immunity it's addressed post placed a periodic review in brown that inma claimed due process violations and prison prison officials did not provide periodic meaningful review not the denial of notice and opportunity heard in the first instance if the conditions there were so severe that the court the circuit thought that there has to be additional of due process not only that basic level of an opportunity to be heard and noticed there need to be something along the lines of periodic review if there are no further questions or going through a process we ask that this court reversed the district of qualified immunity and allow mr evans an opportunity to proceed to trial also certified lost today and i will briefly address the eighth amendment failure to protect on the first amendment retaliation claim the crux of the eighth amendment failure to protect claim is that the district court erred when it misapplied the motion for summary judgment standard to the defendant's motion to dismiss essentially converting that motion to dismiss into a motion for summary judgment and holding mr evans responsible for that higher standard although he had been denied the opportunity to take discovery and also leave to amend defend point however they are they argue that mr evans regardless would not have survived the motion to dismiss had actually been resolved as a motion to dismiss it is our position that he would have survived the motion to dismiss because he alleged sufficient ultimate facts and the basis for these facts was not the proper form for an official grievance and therefore not protected by bradley we take issue with this position because mr evans will be severely prejudiced being that he didn't have the opportunity to present evidence to discovery or even argue this point out s judgment and what is he looking for for that claim i say money damages that he because he had some rights taken away from him that was improper by your view has been to have some sort of monetary compensation for that that's my understanding your honor if there are no you good morning honors my name is kelsey wong and i am also a certified last student i realize you actually have more time than i thought but i had cut three key points regarding the leave to amend issue as well as the adequacy of the record first with regards to leave to amend if the case and been around for a long time you know if you allow people to keep adding crimes because of subsequent events you may never come to an end so why isn't what the courts praga to say this case is about what happened then that's funny ten i not it's alleged to be the same kind of wrong but it's a different wrong it's a different event well this is all this is not the first time mr evans raised it in the proposed first amended supplemental complaint he actually raised this in the supplemental briefing to the court but he did not get a chance to amend his complaint to add this claim as well and i'm sure that answers my concern no why why is there to be first what's the standard of review here s abuser discretion because in this order the district court simply it stated that it was futile because they had already determined that on the first instance when he was transferred to be in ministry of segregation unit in two thousand and ten that it was merely futile because they had already said that the defendants are qualified immunity so the district court dismissed of his claim without even listening to it on the merits again like to reinforce he was it was the second time he was transferred into the e s u without due process and without notice of a hearing second with respect to the adequacy of the record issue this court simply cannot affirm the first amendment or the eighth amendment claims based on the record before it without the documents that were submitted to the court in camera on the record the court doesn't keep everything as a matter of routine it's not at all unusual for a district court to return the counsel for the parties materials that have been submitted there's some is going to appeal there are procedures whereby those can be retrieved did your client do is that the record is not clear the record does not have these documents that is a district court may have relied on and it's order so what is it that makes it the court obligation rather than your client's obligation to to retrieve the documents to the court should have done one of three things to preserve the record and it was not done in this case lastly we asked this quote reverse and remand in this case to the district court so that he is able to add his claim for damages based upon the two thousand and twelve transfer good morning may it please the court cecil renishaw smith on behalf of the state defendants i apologize if i start coughing in the middle of my presentation my dog a mechanic cough and i will never forgive it for  that i would like to start i will take the court's direction on what issues they're most interested in given that there are so many presented but i would like to start by clarifying the state's position on the due process claim related to mr evans's transfer to the administrative segregation unit at snake river correctional institution we the state does not concede that the transfer implicated or violated a liberty interest due process interest on mr evans part what the state is allowing for purposes of this appeal is assuming that the district court correctly determined that the conditions in the a s u constituted an atypical and significant hardship in relation to regular prison life assuming that is correct the state defendants are nevertheless intitled to qualified immunity to if this case were to be remanded for trial the state defendants would be wouldn't excuse me would proceed to have a eviden ary challenge to the issue of whether it we even got to whether liberty interest why this record skipped to the qualified immunity issue which we now have the option to do right there trying to make the point that you didn't by going along or arguing to the district court it could resolve the case on that ground you weren't meaning to concede that in fact there was a due process violation to begin with yes and no the district court actually did not skip to the qualified immunity the district court did find as fact that the conditions and the snake river correctional institution a s u were significantly different from three rivers correctional institute a h u as to constitute an atypical and significant hardship thus implicating and creating a liberty interest for purposes of the latter is where he was when he was transferred he was he was at two rivers in a h u the administrative housing and he was transferred to use the baseline where he were correct on the tree yes correct to use the administrative housing unit as the baseline and found that based on the difference in conditions between those as fact that it created an atypical and significant hardship for purposes of this appeal we are not arguing with that we are simply arguing that even if that is the case qualified immunity attaches to the state defendants because they could not have known at the time of the purposes that's incorrect that that that is incorrect the at the state defendants never took the position that there was some due process required the state defendants have merely agreed that for purposes of this appeal based on the district court's determination that the state defendants were entitled to qualified immunity the state defendants will accept the factual findings of the atypical and significant hardship that created the liberty interest in the first place and would nevertheless the district court found that nevertheless there was no clearly established law at the time that would have let the state defendants know that what they were doing for one hundred forty eight days implicated a liberty interest was an atypical and significant hardship in relation to the conditions of ordinary prison life that had to do with duration or the nature of the administrative unit snake river well that's that's the point that the defense that defendants are hoping to make is that in till this court's decision  brown the clearly established law to the extent there was any was the supreme court's decision in wilkinson and in wilkinson that court looked at three factors the first were the conditions in the unit the second was the duration of the confinement and the third was the effect on the total duration of the prisoner sentence and wilkinson involved the state of ohio supermax prison this was the maximum security i believe california's version is pelican bay where essentially all contact with the human world is cut off for these prisoners and in wilkinson the court found that to be extremely harsh but it also was because these prisoners were sent there with an indeterminate time there was no knowing how long it would be there and third while they were there they did not have the ability to seek or be granted parole which would have given them a shorter sentence and in wilkinson the court said any one of these factors alone may not be enough to establish a protected limit liberty interest but the three taken together do and wilkinson also said that there may be more factors but at least those three must be considered so after wilkinson to the extent there was clearly established law as to what constituted an atypical and significant hardship it was that there were three factors that if they met were met they implicated a liberty interest and this court has applied those regularly  in schapelle in a mirror as and has looked at the nature of the conditions the duration of the confinement and the effect on the prisoners total sen in brown in two thousand and fourteen this court determined that only two of those conditions necessarily were satisfied but that was enough to implicate the due process clause and in brown that was again an oregon case it was a prisoner who had been assigned to the intensive management unit at the oregon state penitentiary which to the extent  supermax that's probably as close as it gets and in that case mr brown was there for an indefinite period of time he could not get out until he had completed all his programming but the way that they had designed the programming he couldn't complete it and the conditions there were sufficient to differentiate it from the rest of the oregon prison conditions so it is your position that before brown under well consider you had to have all three pieces before the due process requirements triggered the hearing true reform was a trigger yes and in that one of the pieces was missing in this case yes yes and it was also missing in brown and that was the effect of the brown comes later though may i and you're trying to distinguish brown with the limited time i'm trying to focus and your argument as i understand it is that wilkinson says you need three on and at most only two boxes rechecked here for sure and the third box wasn't checked here for some qualified immunity should apply correct and i understand that plaintiff is placing a lot of  reliance on to st and hewitt and many cases that predated the us supreme court case in sand then and that reliance is misplaced this case this court has made clear  most recently in the chip pal case that sand and implicitly overruled hewitt and all those other cases to the extent that they found a liberty interest based on state regulations and so to find a liberty interest you first must find the atypical and significant hardship wilkinson is the closest we've got to that for at the time of this and at the time of this transfer the three boxes from wilkinson only two were ticked in the brief time that i have left i just want to note that for the eighth amendment claim the court was dealing with two motions they were dealing with mr evans's motion for summary judgment on liability for that claim and with the state defendant's motion to dismiss based on the pleadings the court clearly ruled on both it denied mr evans most and for summary judgment saying that the evidence that he had presented in support of it was insufficient and then granted the state stating that the pleadings as they were were insufficient to the extent that mr evans would have tried to present additional evidence to support those pleadings it did find that that evidence was insufficient but it wasn't by doing so converting it to a motion for s between the conditions in a a s u she was in for it was virtually solitary confinement inmates remain alone in their cells for twenty three to twenty four hours per day the only time in may can leave a cells for visitation exercise showers appearance and hearings and that those i guess liberties could only be done with the one hour of time to have during the day so these are supermax like conditions second the qualified immunity argument  that the defendants are trying to play up here is that there needs to be a specific finding for every time a qualified meaning else is going to occur and that just means that the government officials can circumvent constitutional administrative rules