good afternoon and may it please the court my name is bella and i'm here with my colleague david cost on behalf of the plaintiff appellant and when jensen we are here to defend the fundamental notions of fair play and due process which were denied to jensen he was found guilty and served as of the complaint one hundred twenty days in solitary confinement all on the basis of an alleged admission that he made outside of the facility the dispute in this case about what he may or may not have said and at the disciplinary hearing there were no witness testimony offered no witness statements offered and there was virtually no other evidence offered to support the charges including for example physical are you saying there's not any evidence of what it offered at the hearing no no your honor we we're saying that there was virtually no evidence offered in the hearing let alone reliable if so what is the evidence that what is admitted is it the report by the corrections sergeant saying i heard from other people that he made this statement in court  allege that the admission was made hackett does not allege in the misbehavior report that he heard the admissions or that he heard from a third party that jensen in fact maybe said well that's what i'm so i mean so the your point is that all there was was in effect indictment that says he did these things a charge that said he did these things but there's no actual indication of what that charge is based on yes your honor the misbehavior reports are charging documents they set forth accusations about the misconduct now in this case the misbehavior reports alleged that jensen head unlawfully taken he admitted that he took suboxone while he was incarcerated earlier at the facility however the misbehavior reports contain virtually no specificity or facts to apprise him of exactly what he's being charged with for example the misbehavior reports do not identify when he made the alleged admission to whom he made the alleged admission when he made the alleged admission but the admission is not a violation as mr jensen himself pointed out the fact that is admitted is the violation yes that is if i made the admission he admitted to having committed a violation the violation was obtaining the drugs while in the so the hearing officer doesn't actually have proof before him that jensen actually acquired a drug and subsequently consumed it so what should have happened in your view is there should have been a witness to appear someone like potentially since hearsay is potentially admissible the sergeant should have come and said i was told by a particular person that from the court that there was this urine analysis and there was an admission by mr jensen that he had taken the drug while in the prison yes that would have been helpful in fact during the hearing we know from the summary judgment affidavits that moll and stepped out of the hearing for a moment to talk to start to hack it and so he was available but he was never called as a witness to attest to the conversations that he had with third parties about the admission and so as a result it's our position that the that the education of guilt was not supported there was virtually no evidence to support it let alone reliable evidence when he came back to the word virtually and i'm trying to figure out what is the minimum that would work here this certainly does not look like a trial where the judge goes out as the fact finder and goes into the roving room and calls in the person who would be testifying and says did you really talk to somebody and he really told you that ok fine and then comes back and says well you're right so is that the essence of the problem that there is not a witness appearing if the sergeant had appeared it would have been altogether different i think well i don't know that it would be altogether different but i do think that it would've been a different situation the the guilty dispositions state in the section facts of alleged violation quote while incarcerated in this facility the above named per jensen admitted to jim ever hard that he took drugs while in jail so the disposition is based on a supposed that admission leaving aside what it does tell you who was told you a minute ago he said there was nothing that said who was who made the statement  jim ever heard who said that the admission was made to clarify jim everhart was not called and stan who was not called as a right the hearing officer relied on a conversation with ever hard or relied on other persons about a conversation with ever hard in coming to this conclusion i think the other evidence the other kinds of evidence that would have been helpful and that would support the determination would have been for example a negative drug test or contraband or well lots of things would have much better if they had you know he would be very guilty and they would be great evidence if there was a witness testifying under oath subject to cross examination i searched his cell and found drugs there and here are the drugs ok that would be but that's not this case and what i'm trying to figure out is if hearsay is permissible what are the limits of that and you're saying that this transcends those limits yes yes your honor and the reason for that is because during the hearing the hearing officer referenced conversation that he had and he stated that that the call that the facility had received from persons attesting to this admission those were quote testimony but that's not that's not what testimony is i mean his personal off the record conversation to understand so if so what is the case that would establish as a firm friend suppose that a hearing officer in a prison can't do this kind of thing that strikes me as fairly outrageous in the context that says that  there has to be a live witness testifying that the hearing officer can't rely on hearsay that is relayed to him by other officers outside the presence of the accused well your honor under the under  the requirements for due process there has to be a written statement of the by the fact finder is the evidence that was relied upon of the reasons for the disciplinary action taken yes that's what's clearly established under wolf is in that there has to be a statement of the evidence relied on and that is not present anywhere here is that your point yes your honor not a yes and so there's no evidence as to what ever there's no evidence as to there's no statements in the record at the disciplinary hearing for example from any statements made by by jim ever hard our our position is that well if you look at say for example  four there is a kind of disposition sheet that says findings and evidence used in determination and that is blank is that what we're concerned about in this case are we concerned about something else your honor we're actually we're concerned about that as well as the other sections that are blank that are left blank on the dispositions sheet including for example witness testimony limitation of witnesses or questioning limitations of evidence provided to the inmate the that the inmate has a due process right to be apprised of the evidence it's being that's being used against him and he isn't apprised based on the misbehavior reports and then during the hearing he says he learns for the first time that there are statements that are being held against him and our position is that that's not enough because he can't mount a defense or challenge that and so he in as a result his due process rights were violated you talking make that statement during the hearing in response to the accusation isn't it the case that you made that jensen made an admission to jim ever hard and he responds by saying no what i in fact stated was i could have  what he says is i lied and said i could have done it here he is what he said i value and listen to this this is in the cd of the hearing he says he's asked did you tell the court that you a drug here and he says i lied and said i could have done it here it kept me out of jail in other words his position is i take it is he was accused of violating the conditions of his release by using the drug after he got out and he says no i never violated the conditions of my release because i didn't the jail before i got out and i didn't have to help him very much with the judge i guess but what he what happens at the hearing is that he says he will lie to the court and said he could have taken the drug in the jail your your honor my under my interpretation o interpretation of the hearing record is that when he states i lied what he's referring to is where he got the suboxone and he's making a distinction between having it at home and state as a prescription for it versus he could have received it in jail but that's very different from how it's all fine but if he's saying he's explaining away what he said to the court isn't he admitting that he said it to the court had the suboxone at home as opposed to the lie which is he could have received it from whether he lied or not didn't he say i could have got i could have done it here meaning in the prison he said that he does yes and he was confronted with that and had a chance to rebut it will he still he says he's offers that in response to the question as to whether point is  he knew he knew there was a statement like that before the hearing office yes yes or he understood was it done in secret he knew it right he knew it that's not hard for you to agree to know i mean he while he is the misbehavior reports charge him with making an end of the narrow statement he could have he said he could have done it either he knew that statement was in the record theory he didn't have a fair chance he did have a chance to deal with that remark he did your honor and ok and why isn't that remarkable alone anough to support a disciplinary hearing because you honor i think that is the i think that the hearing officer is allowed to weigh what he's hearing but what he's weighing the statement that jensen makes in the hearing against an admission that's reported to him but it's not clear what that admission is well except that except the jensen gives actually two versions he does at some points deny that he ever made such a statement but he also then says i lied and said i could have done it here that i could have done it here is not the third party account which actually is that he did do it here that's what the hearsay supposedly is this is his statement that i lied and said i could have done it here that's one of the versions that he gives yes your honor and he also goes on to explain that he has a prescription first of ox and even states that the jail medical records  that so i think he is even though he makes that statement i can see that coupled with the fact that he also unequivocally denies telling or admitting to anybody else that he in fact did take suboxone did receive it from someone and i think that that please the court my name is charles i'm here on behalf of the respondent appellee correction officer john mullan there were three issues raised by miss cetera one being whether the notice of the charges was adequate one being whether the completion of the disposition form was adequate neither of those arguments was ever raised below either in the complaint in opposition to our summary judgment motion or in opposition to or objections to the repor we argued that their way even if not under power over since kaufman challenge based on due process or any other constitutional violation does not render a person why of all unless it is shown that the error was not harmless we contend that regardless of how the notice of charges was phrased regardless of how the disposition was phrased the same result would have obtained as your honour's have noted the same arguments would have been presented by mr jensen in in the disciplinary hearing the question then is really whether there was reliable evidence in the record of the hearing to support the disposition first note that the fact that we are here arguing about this at all strongly supports the dismissal of this appeal a district court judge well learned in the law in this area and with briefing on the major cases in this area found that there was no constitutional violation unless this court is prepared to say not only that the district court judge was wrong but that officer mullen should have known better than the district court and recognized that he was violating mr johnson's due process rights then qualified immunity must apply and since officer mullen is the only responding in this case that means this court need not even reach on to tell me what the evidence is in the record absolutely or on or first the misbehavior report which even if it doesn't categorize every step of the process by which the information came forward he's hearsay evidence though the various charging instrument itself is evidence if there is something that says he did this if it's signed by someone who heard it directly or indirectly yes but the second piece as your honor noted several times on the wreck this is not a church where a correctional officer says i saw him punch another inmate and that's and signs and says that he's charged with punching that other inmate on such and such a day that i saw a signed officer jones this is just a church that he said something in court and it's not signed evidence point two of the evidence i need hardly repeat to this court is mr chance and submission that he made the essential equivalent of the statement in question so there is some evidence in the record and under superintendent versus hill it can be meager evidence in their case the court characterized it as me gravitons but any evidence in the record is sufficient to satisfy the due process requirement superintendent versus hill very clearly said all you need is some evidence in the record this reliable has to be in the evidence right and those mullen's conversation with the sergeant outside the hearing room count as evidence it doesn't come as evidence accounts as indeed of reliability of the evidence that's on the hearing record so since indeed reliability can be off the hearing record and this court and the supreme court have repeatedly found that additional information to establish that due process was satisfied can be provided after the fact to the court upon challenge sirrah versus morton one of the pekoe under those circumstances all of the induce of reliability that officer mullen considered our cognizable as in dish of reliability to show that the evidence that was in the record was reliable those included not just mr johnson's statement on the record that he basically made the mission and mission in question and as you pointed out claimed it was a lie therefore saying it wasn't just a conditional hypothetical but it was an actual claim of fact but he had information secondhand reports from five individuals associated with the court system the probation department and the d a s office all five were consistent yes to what they had heard mr johnson say mr johnson statement was made on the record under oath in court and officer mullen personally interviewed not only sergeant hackett but two of the individuals who heard the statement firsthand and satisfied himself as to their credibility the evidence is the description of violation in the charge sheet that says it is on the authority of sergeant hackett that the inmate tested positive glee in urine analysis and while being questioned for this he said that he got it from another inmate and what shows that that is reliable is the off the record conversation that outside the hearing room conversation that the hearing officer had with good told him i got this from five different people at the court no your honor there is also the off the record conversations that he had directly with the people heard it and there's the on the record admission admission but there's also the admission by that he made the statement and since that's the admission of a party opponent that's not hearsay we did make an argument in our briefs and i'll leave it to the briefs on the exhaustion of administrative remedies not being satisfied here but at the end of the day there is no clearly established law that would have put officer mullen on notice that what he was doing violated mr jenson's constitutional rights under the circumstances it has to be contended that it was objective lee reasonable for him to say i've got an admission on the record i've got the misbehavior report signed by sergeant hackett we've got five different court and law enforcement associated personnel all saying the same statement he happened i've got i've talked with two of them personally and satisfied myself that they heard what they heard and that they're telling the truth and finally you've got mr jensen admitting contending that he lied under oath in the court proceeding under the principle of what i tabled web we weave i think it's fair for officer mullen to have said i'm not going to credit mr johnson when he says he was lying in a court proceeding he's trying to get out of the consequences of his actions now and therefore i'm going to rely on his admission those conclude my comments i'd be happy to address any further questions from the court just as one more thing though i doesn't wolf in wolf the supreme court says and this goes back to the one nine hundred seventy four that a written statement by the fact finder as to the evidence relied on of the reasons for the disciplinary action and i is what someone is entitle to because without a written record the inmate will be at a severe disadvantage in propounding his own cause and granted i don't think this argument actually gets made in this form even in this c d in the brief but i'm puzzled is it the normal practice to have a disposition that in fact doesn't say what the reasons are at all not not even so much as i believe what the  form stated while incarcerated in this facility the above named person admitted to jim everard that he took drugs while in jail the drug known as sec was used which he received from another inmate that was transferred out of state prison so right there that's the basis that's the charge all the all that the hearing office is guilty doesn't give any reason why he thinks he's guilty i submit to you your honor that's more than sufficient to notify the mr johnson as to why he was thank you your honor i'd like to address a couple of points starting with the first waiver issue broadly speaking in the complaint in this is that page eleven of the record mr jensen stated that is my thought that due process was greatly ignored in the steps leading to my isolation in this facility and so he didn't wave arguments regarding the the notice or the lack of a written statement on the issue he didn't but did you is there anything disposition was not based on some reliable evidence and that the written disposition is contains insufficient information for example as we discussed earlier there were several fields that  didn't at least in his limited findings didn't credit the discussion that he had with jensen or this this alleged mission that he may have made during the hearing and i think that a reasonable jury could conclude based on what was a juice at the hearing coupled with the fact that gent that mullin is relying on third party conversations as evidence a reasonable jury could conclude that there wasn't sufficient reliable evidence to justify the disposition thank you very much reserve decision