a good morning i'm going to say though and i represent charles ryan and richard pat pratt in the defendants in these three consolidated appeals i'll spend my initial time discussing the defense to appeals and then i'll reserve ten minutes for responding to plaintiff's appeal and rebuttal argument for our two appeals first the outside transport order the crux of our argument is this the district court ordered a t c to maintain one hundred percent compliance with respect to several performance measures it defended that order by claiming the stipulation already require one hundred percent compliance but it doesn't the stipulation only requires a t c to meet a certain threshold at the time of this dispute the threshold was eighty percent compliance so where does it say that ten a stipulation but doesn't that ok if i be asli there's because it's a stipulation there are certain things that if the other side finds you to be in violation that they have to give you notice and then you have to go through meaning concurrent all things before so it's kind of a mechanism so that every time there's something that goes on that you can't just run to court but i find it a little bit hard to believe that you want to say that you only have to take care of eighty percent of the people what we're saying well i mean because you know once people go in because to be then they're your charge and there's something you know how you take care of those people may be an instance but to ask to say well we don't have to take care of every one that that doesn't seem very palatable or very very logical conclusion palatable or logical but that's not our position of course we should strive for one hundred percent compliance but the stipulation to be held non compliant we have to fall below eighty percent and that's the distinction that's where the district court erred it instead rules that were we can be held not compliant if we're below one hundred percent compliance and then invoking its remedial authority tacked on an additional twenty percent of compliance so we do have to the performance measures require they explain the conduct this is what i say this is a possible to look at what the district court said is yes you have to take care of one hundred percent but in order for them to bring you to court it has to be below the eighty per cent i think what the difference is this reported more than that we were below the compliance threshold and what it did was it ruled that we have to ensure that every single issue that every single inmate is seen in the matter outlined by the performance measures and that's what the error is it doesn't require one hundred percent compliance and that's not to say again that we are only permitted to take care of eighty percent of the inmates the distinction is once we fall below the eighty percent threshold that yes that does trigger the party i mean the court i'm sorry it triggers they can start bringing you to court yes or does right but then but the remedy is just to get us back to eighty percent not to exceed that eighty percent threshold that's hard to read in there i mean it seems to me the purpose of paired paragraph tennis twofold first it specifically says it determines whether a t c has complied with a particular performance measure and then also dictates when defendants can move to terminate the mechanism to go to court that's later on that's an paragraphs thirty and thirty one and it does refer to substantial noncompliance but if you go back to paragraph ten which again defines compliance as being a meeting or exceeding eighty percent threshold that's that's where we're at here and  i don't disagree that if we fall below eighty percent then yes we can go to court in the court can resolve the issue but what the court can do is say i'm going to order one hundred percent compliance going forward by using all available community resources you have separate appeals or which appeal or you are now this is the first one this is our appeal of two but this would be the outside providers appeal that's correct to the transportation public safety or you want to be sure yeah i mean that was another error i mean even assuming that there was one that stipulation requires one hundred percent compliance the district court was wrong to then order eighty seats as part of its order to transport these individuals outside of the facility to receive care within an hour or a day of missing the missing the deadline that order poses a grave danger it made staff in the public and it's frankly just not logistically possible and when a court is fashioning injunctions are supposed to they're supposed to be narrowly tear tailored and they're supposed to defer to the expert judgment of corrections officials and that wasn't done here the district district court just imposed this injunction without giving us an opportunity to show the district court what testimony and expert testimony the the ramifications of this order and its justification was that look i've got to look at the the risk of the risk of harm to these inmates in the institution and balance out against the the risk to public safety it concluded after balancing that that the risk to the inmates outweighed the risk of public harm but that was that was an abuse of discretion and we're only talking about noncompliance with certain prefer before most measures we're not talking about a violation of anyone's constitutional rights there's never been a finding that any inmates constitutional rights have been violated and we're talking about a handful of performance measures that fell below the threshold and to conclude from that is to say that that risk of harm not actual harm but that risk of harm that noncompliance outweighs the risk to public safety by transporting inmates on an hourly basis on a daily basis into the communities an abuse of discretion finally the last issue in this appeal i'd like to touch upon is the court certification of the transfer transport order and if you look in its order denying a rule sixty motion it did rubber stamp it did  include the language in the p l r a thirty six twenty six a a one that its relief was nailed narrowly tailored narrow narrowly drawn and extended no further than necessary to correct the constitutional violation and was the least least intrusive juice of means to correct a constitutional violation but no where before that time or even in that order did actually find that a t c had violated anyone's constitutional rights or anything and the federal right a court can only not only can it not certify an order without language but it can't injunctive relief and appeal or a without first making that prerequisite finding plaintiffs agree with that and that was not done here but plaintiffs argue is that you can somehow infer that there was a constitutional violation by the simple fact of the parties  entered into the stipulation but nowhere in the stipulation did the parties admit that there was a constitutional of finding constitutional liability and in the order regarding settlement the court never found that there was in fact a constitutional violation again it just lifted the language from the p l o array and just put it into an order but there was no prerequisite finding and that's an alternative basis to vacate the orders of jump ahead to appeal number three i can talk about jurisdiction if the court would like to i know plaintiffs have argued that there is no jurisdiction but we've read three grounds for for jurisdiction under twelve ninety one twenty two and also of the clowder order for doctrine  in addition to the arguments in our brief i'd point to the court to armstrong versus schwarzenegger which plaintiffs have cited in support of jurisdiction for their appeal that case also supports this court's jurisdiction here the order expanding the subclass to include maximum custody inmates and requiring a t c to apply the performance measures to close custody mates that's more than just an interpretive order it affirmatively required a t c to do something and that's what makes this case different from cases like jeff di it was not simply an interpretive order it was an it was an affirmative order for a t c to begin to monitor their computer monitor close custody inmates and ensure that the that that their conditions ok if they if you're doing would be if you attend interpretation what is the language where interpretation there's two things to interpret one is so it defines what the subclass is and it defines that as including all inmates who are confined confined for at least twenty two hours then the rest of the stipulation it only only mentions a subclass twice it defines it and it says the plaintiffs are entitled to five medical and institutional files monthly or when they request it that's it the remaining part of the stipulation only talks in terms of max custody inmates it specifically says that the performance measures apply to the two max custody inmates at the protocols performed apply to max custody inmates the source documents all derive from x custody inmates that's the second interpretation no where in else in the stipulation does it say that a t c is supposed to monitor compliance with close custody mates and those are two separate classifications the class that classification predated the stipulation there was always max custody mates close custody inmates medium custody a minimum custody that predated the stipulation by definition close cus the inmates are not confined for at least twenty two hours a day they're confined for less than twenty two hours a day and that's all that matters and that's where the interpretation was wrong the district court ruled that even though they may be confined for less than twenty two hours a day their conditions are not substantially different enough for me to exclude them from the subclass well again the death the definition is clear provides a bright line a bright line test and that is the number of hours in confinement it doesn't say the subclass includes inmates who are confined for twenty two hours or more day or inmates  substantially similar conditions and that's the misinterpretation and that's how the district court improperly rewrote the statute  there's an order re settlement which was approved on the same day which was signed by the judge on the same day that the settlement was approved by him it says based on the entire record in this case and the parties stipulation and i wanted to go to that stipulation which is on paragraph thirty six of the stipulation says based on the entire record the parties stipulate and jointly request that the court find that the stipulation satisfies the requirements of eighteen u s c thirty six twenty six a and then the court thereby quotes the language of thirty six twenty six and it says the court here by finds that the relief set forth is narrowly drawn extends now for the necessary to correct the violations of the federal rights of the plaintiffs so there clearly has been a finding and it had been requested by the defendants as well as the plaintiffs that the that there were constitutional violations in this case and that's what animates the court's jurisdiction matter i wanted to also respond if you've got two parties coming together and they enter into a stipulated agreement why it's not sufficient for what your honor for all this argument about constitution the raising of constitutional you all in creed to a certain way i'm just curious why we're you know on that particular point that i was just responding to my i understand that but you can't just to creep them to two parties as to what's to happen yes we did that your honor in that and we also agreed the court would be changer stiction to enforce this this appeal ation that's correct i just want to respond to the defendant's argument about the security risk first of all there isn't been no stay of this order the defendants didn't even file a stay of this order in this in this  court and as far as the record shows in this case no the defendant pratt testified that no patient has been taken off site pursuant to this order they may have used community resources we don't really know but  to that order has been in effect now for almost a year and there have been no problems there's not even been a motion for modification one with think if there were the defendants would have been in court asking for modification well that's the parade of horribles i know that that but but that being said to sat where we answer the question for us whether the court could do it at the time that the court get it well yes i suspect that it hasn't and it hasn't really been that bad for yeah i  think well i think it's something you should certainly take into consideration if it was a if it was a parade of horribles as they are legend their brief and you would think something better would have happened by now but just to give you some context from where the district court was coming from you know there was a side look at this a little bit differently i look at that we're interpret in the stipulation and what the court can do you know with the stipulation so what's happened subsequently it's always interesting but certainly i understand but i would like to give you some context about why the court entered that order and that was because there were massive and sustained failures on the part of the defendants to meet the critical compliance performance measures that are required by the stipulation of the record for example shows a thirty percent vacancy rate for physicians a fifty nine percent vacancy rate for psychologists a fifty percent vacancy rate for medical directors which defendant pratt described as quote a key in doing business in the district court if described defendant's efforts at obtaining compliance as quote just treading water back chilling amount of failures and there is a quote great chazz i'm confidence in the way the defendants were managing the system this was after the court had on numerous occasions given the state  well ordered the state to come up with its own plan to fix the problems found that the defendants were not fixing the problems through their own plans found that the plans themselves were inadequate so the district court was trying its best to make sure that the plaintiff class was covered by the performance measures and it believed that they could use community resources in a safe and secure way the order allows defendants complete control they don't have to take people out they can take up they can bring people in they can use tele medicine they could hire more nurses or nurse practitioners to do the job  i'd like to go to the the other appeal the second one staffing appeal staffing appeal yes unless the court has a question about jurisdiction i'd just like to move right to the  merits we found out we believe the district court found on several occasions that inadequate staffing is the root cause of compliance the just said the court has given defendants multiple multiple opportunities to comply without having to without an order aimed directly at stiff thing well i must say i guess what i'm what i'm looking at here is that a court's in a different position if it's hearing if it's just hearing a case that you sue the state and you say that there's all these things going on and then the court orders what you have to do here the court is interpret in the stipulation and so isn't that doesn't isn't the court in a different situation and do we not i mean the fact that there are say they're getting absent everything if let's just assume that and it were and the court were deciding what am i going to order them to do then the court would have the authority to order what was appropriate but here we have to look at what that but we have a stipulation and they settled this you all agreed to this and if it says that you can't force a styer anyone what do we do with that even though that might answer a lot of the problems yes and i agree well there are there are one answer and one thing about what you can do or you can do about it i'm just saying i you can feel badly about that you know that but we have to confine ourselves to the stipulation so i need to hear that sure and are not that they're doing a terrible job are they how are they violate in the stipulation sure we believe that the court made an error of law in interpret in stipulation the stipulation does not say that the court cannot does not have the power to hire anybody or to force the defendants to hire anybody the stipulation says that the court has plenary authority to enforce the terms of the stipulation except it can order the defendants to build prisons absolute prohibition and it can order the defendants to hire to hire a specific type and number of staff our position is and i think the plain language of the stipulation is that the court can order defendants to increase their staffing leaving to the defendant's discretion the specific type and number of staff that they are to hire why and why do you need to go that far it seemed to me  that it would be that the district court could ask for the for the prison to indicate what its capacity is necessary yes  that would be sufficient and under your understanding of the of the agreement why did why does the you have to get into the hiring why not just the planning phase why not just a plan for hiring for plan of you know what what number of employees would be appropriate i completely agree your honor that's what we've been asking the district court to do for two and a half years and i think and but you seem to go further to say that direct them to hire there's a difference between planning of your needs and directing you to fulfill well the first step is to define find out what their needs are and why their staff as it's currently constituted has made it impossible for them to comply with the performance measures in the stipulation so i agree with you but you see that's the problem they don't want to go the first step because it leaves the second step right so your argument is that if you're only developing a plan which you need it doesn't direct you to actually hire people right and the district court has interpreted the language in the stipulation as a complete prohibition against hiring more staff we don't think that's true we think you can correct that's correct but that's not what the district thought court thought he had the authority to i understand and we we disagree with that part of the district court's order answer judge callahan to answer your second question our fallback position is that if in fact you would interpret it the court's order as the district court did which we think is wrong we made a motion we made a motion to modify the language in this in the stipulation so that it allows the district court to take the measures that it has found necessary to chief compliance with the performance measures well i guess how just maybe you can help me out here maybe i'm maybe this is just my own not understanding a practical when you make a motion to modify on that much like say like people settle a simple case for four hundred thousand dollars and then they make a motion to modify it to five hundred thousand dollars because that wasn't enough how do you how do you change the you know how can you change the terms of what the conditions are unless someone agrees to it well that's because this is a settlement agreement exact it's very similar to this court's decision in kelley v wrangler where there was a settlement agreement between the two parties the district court found that the defendant's prison wasn't going to comply actually as a private corporation where complying with the staffing requirements in for for that settlement agreement and then the court modified the agreement to allow to extend jurisdiction because the in addition to other remedies in good morning and may it please the court i'm amy fenech representing the plaintiff appellee in the subclass appeal and i first want to clarify something that defense counsel stated and that was that close custody inmates definitively get out of their cell more than twenty two hours a day that is that it's not true indeed that is the heart of what the district court found here that defendants did not probably provide sufficient evidence  they only provided one declaration what about the statutory construction just in terms of maximum security or they're at their worst listing in certain facilities and what i'm understanding the government to say is close custody people existed at the time that the stipulation was entered into so why should we right and to that close custody is really maximum security and do that i mean we you know statutory construction we presume that people was put together everyone was defined as maximum custody in those units and the reason it was just jumped of was there was concern that gamesmanship would happen that either all the max all the subclass individuals would be moved out of the units or as defendants have suggested here that they would be kept in their cells for twenty twenty one hours and fifty nine minutes a day in order to do it to whittle down and destroy the subclass and so there are those two components and that's actually what the district court looked at here he asked the defendants to parole what if it was nineteen hours that's close to twenty so we're happy if you're going to whine and cry if if the definition twenty two hours or more what's wrong with lying trying at twenty one hours and fifty nine minutes what here i mean we have to draw a line somewhere indeed that's true and here the district court trying to draw a line and he asked the defendants to provide evidence that those  people they were now claiming were close custody and therefore not part of the subclass even though they were in the numerator units he asked them to provide evidence both that they were no longer in the innumerate if they were no longer in the  also that their conditions were substantially different and what different it's provided to the court was one decoration about one facility and in that declaration what the court said he found and indeed what is there isn't merely a laundry list of hypothetical out of cell time that evidence didn't tell him what anyone who was in those units was actually experiencing and so his ruling what it did was they sickly maintain the status quo with the narrow exception of those people in the jobs program and so that's why what the court did here was merely interpret the subclass that's why there is no jurisdiction to hear this appeal merely an interpretation of the some class that's what we're looking at here maintain the status quo in fact defendants don't have to do more under this order they do a little bit i don't quite understand that argument that was like you know this really helps that if they're if they're you're helping him out so much i don't know why they're opposing it so i didn't quite understand your argument that this is so much better for them but they just don't understand that explain that to me  court did was maintain this subclass definition intact so defendants do the same thing that they have always done under the stipulation with the exception that the district court said look the evidence you provided me about individual specific individuals specific numbers of individuals in fact about two hundred seventy eight who are in a jobs program who get out of their cell and work for twenty hours a day those people are now different those those people can be excluded from the subclass everybody else status quo and so actually now defendants have to monitor fewer people because those that it can stablish are in the jobs program are no longer part of the subclass and that's why this order was so well so does the precedent then if it were to stand disadvantage mean that the district court then can just keep reviewing files of people and saying ok you're in the class now or absolutely not because the district court drew a line in its order but what it did was quite provisional and that's why there was no jurisdiction to hear this appeal because the district court said ok there are these people in the jobs program and i'm convinced that they're no longer part of the subclass but i want the parties to work together to see to deal with some of the questions that this ruling raises and if you have twenty one days come back to me with either a workable plan or tell me how i can help you instead the appear the defendants appealed and the court had to reiterate them look i still need information from you in fact and it's order from february sixth the court said you know it might be that nineteen point five hours is the better benchmark and if the parties think that's the case then come back and tell me instead the defendants appealed this subclass there is no jurisdiction this is not a final order under twenty eight u s c twelve twenty one further this court has precedent ordering parties to come up with a plan and get back to it that's the idaho state board of corrections where the court found again these are not final orders they are not so what their argument can be i'm just trying to put their argument for jurisdiction is that the court did more than just come up you know  think the two sides are if however many sides we have here are in a position that if you come to some other agreement you can amend the stipulation in the court couldn't stop you from doing that right and you that's what the court can be frustrated with the sides not doing that and then they get shoe is more what we have here is what can the court do and interpret in the stipulation and i'm seeing i think their argument is that the court's changing the stipulation  and and using that sort of as a hammer but they never agreed to it in the first place what they did was you know laterally try to modify the stipulation and the courts said give me evidence that the subclass indeed can be modified and evidence they provided was insufficient it only supported the status quo with a very narrow exception and that's what the court ruled on and they said they modified it are you saying that they moved people out of maximum security into what we call the other one close security you know what they did i mean the president's i think fairly undoubtedly can move people around in the presence and how they still do that absolutely but what they did actually the the source of this entire dispute is that they refused to provide to prisoner records under the terms of the stipulation this is at heart a discovery dispute and it's about defendants failing to comply stupid i don't really like hear that that it's like we have to decide legal issues because something is at heart something it's like really like this is all this all came about we're all in court because someone was mean to me or you know it's mean that's we have to decide the issues but what you're saying is the issue isn't the issue the issue started with the discovery dispute over two prisoner orders and that's why i say we're close custody as opposed to in maximum security well they were in subclass units actually and so under the terms of the stipulation those records should have been made available to plaintiffs but defendants refuels to produce them claiming that they were now not part of the subclass even though they were house this was a great surprise to us but it goes to the provisional nature and case management of these orders at heart because it was a discovery dispute and this court has actually looked at that issue in plot of the brown and said  management orders discovery orders don't have appellate jurisdiction underage which section twelve ninety one they're not final even in a post judgment context because the concern here is opening up the floodgates to piecemeal appeals the the records actually were never produced ok thank you counsel thank you y and you're correct that this court's only job is to determine whether the district court can order the remedy outside transport order in appeal number one or not under the stipulation a t c cannot be held non compliant if it's less than hundred percent that that much is very clear from the plain language but under the court's order we can be if we're between eighty and one hundred percent for ninety nine point nine percent we can be held non compliant because this order requires us to be one hundred percent compliance so i agree let's look at the stipulation and see whether or not the district court interpret you're not right you're under eighty anyway right well on some performance measures we are and that's when the judge came in and said not only do you have to be eight get get it back to eighty but you've got to get it all the way up to one hundred percent under the terms of its order under the terms of the stipulation i think both parties agree well it's our position that that if we're ninety nine percent compliant that the court cannot hold us or find that we are non compliant right i mean it's triggered by the threshold level but the district courts and look you have to be one hundred percent compliant but i don't have the power to intervene and unless we have these lesser threshold levels and it can intervene once it's below eighty percent but then what the order does is then the parties can agree to whatever they want i mean the stipulation you just leave it leave it as it is the question is what do you do with the order the order was improperly certified as being pillory compliant because it's not because there was no constitutional find violation finding that order has to be vacated did you a great about order though that was a proposed order yeah that we agreed that we would submit the order the court but is it but then i guess what is an inherent to that the fact that you agreed to it that there was a constitutional violation now no just how does it comply with the pail right well there's there's some ambiguity of whether or not settlement agreements like this that maybe made a bad stipulation there but let's assume that that's true that does that's not a reason to imply a constitutional violation and if you look at him you know on the other hand if you in fact stipulated to the constitutional violation and compliance of the feel our way it's hard for you to appeal from that that's invited her face well i go back to we didn't stipulate to a constitutional violation these paragraphs seven says that the part of the interpretation shall not be construed as a finding of liability by any party that was an agreed upon our vision right and by the jurisdiction and you agreed to the feel number two is one seven dash one five three zero two well that's two the staffing appeal why couldn't the district court enter a generic order about  coming up with a plan for the well do you think that's part of its authority if they just asked for a staffing analysis let's figure out the root of this problem perhaps perhaps that might have been ok i mean it would have been expanding resources on that but what are you going to do without order the purpose of issuing such an order is to find out you know you need to hire this many more people this many more doctors or nurses in this facility here you need to hire more people in this type here that's the whole purpose of  a staffing analysis is to get that information they didn't even ask for that they didn't just ask for a staffing analysis below they wanted in order to increase staff now they're there massaging it to say well we want to staffing analysis plus in order that orders a t c to implement a remediation plan that's informed by that analysis so it's not just a staffing analysis it's an analysis plus now then you also have to implement the results in that isn't that  the the order doesn't say that the order they want is just the analysis you're arguing about what they're going to do next well the district court rule based on what they requested it looked at what the request was below which was in order to increase staff and it said look i can't issue that order i know you stand because because the magistrate judge decided that the stipulation didn't allow to do it because you can't give an order to hire people but this was an unordered hire people i don't understand why the magistrate judge decided that this was an order to hire people something he cannot give there's nothing in the proposal of says you have to hire one hundred  fifty people who cetera i think with the district court concluded was if you if i were to order you to increase staff in a t c came back and said i'll hire one doctor at this facility who but that isn't what they're asking they're asking to find out how many you need the district court realize is the measure judge realizes he can then ordered say hire those people but there's nothing in this stipulation is says as i understand it that they can't ask for a plan of getting the need well that but that's not what they that was not the genesis of the order and if they want to go back and request such an order they can but the order before this court  rejecting their proposal to issue a general staffing order or in order to increase staff that's what's before the court if they want to go back to a general staffing order there's nothing wrong with that if they're well or  what your staff you need it well it's a very good aids general general staffing increases that's a quote from what they had requested general staffing increases we move for an order that requires staffing increases that's what was requested below  that's there they're shifting now that well the court said we can't do anything well that's not that's not what the district court did the district court looked at what the request was and said i can't order that because it's going to violate the stipulation and that's the only thing before this court whether or not the court can modify the stipulation to remove that no staffing for provision that arguments based on rule sixty six the authority to modify is grounded in a court's authority to modify its own court orders and either the stipulation or the order resettlement is a court order it wasn't entered by the court it was a private settlement agreement before the parties and i understand that the the parties allowed that the district courts retain jurisdiction to enforce it but it  that does not convert either the steps or the order into an order it doesn't say a t c is ordered to do this the order doesn't incorporate the terms of the stipulation and because neither the stipulation of the order is a consent decree or a court order or have the judicial in premature of a court order sixty six is off the table the court cannot modify it the stipulation expressly precludes the district court from modifying it so what do you think the disk or can do with respect to staffing what is a permitted to do under the having actually has if in fact just ordered something similar to that you couldn't say i would like a staffing plan without being specific but i don't think we would know what that means we can only i mean if we don't  staffing plan as how to how many people do you propose to hire or something like that and you would i think take umbrage with that right because what would be the point in providing a conducting analysis that says we you know but if you said something like ok here's where we're down here is where you know this is what we need to do you know this sat me out there and another lawsuit could be brought is that correct and say the prisons are not you know it which would be separate from it's not a question of the stipulation and the presence aren't doing their jobs that's what caused this stipulation in the first place right right but they still could bring another lawsuit cracked well that's an interesting question and let me just back up when i i'm not agreeing that we entered into the stipulation because well that stipulation can't cover the rest of pr staffing analysis can be can be ordered hypothetically i mean we can we can discuss that but that's really not there is what i'm sorry no good you're indicating that you think there was no reason for this other than to get him next to direct you to hire them but that's not necessarily so it can be used as a as a proposal to the legislature to make changes it could be used to develop community view s so that people can vote at for the next member of the board of whatever does there's other uses for this other than what you indicate so if it doesn't necessarily result in an order that you direct one you must hire hundred people then isn't it within the stipulation i don't i think the district judge may have missed it mistakenly believed or didn't think through of the interpretation magistrate judge gave to the i would invite you just to go back to their briefing below and look at exactly how they phrased it and what they requested that may be so but what we're reviewing to hear now is what what the because it does not direct him to hire anybody you don't need to rex that there be a plan developed and maybe the judge's order was a little bit broader than what the relief requested was but there the judge or issued orders every single day in this case they're usually they can be anywhere from one or two or three pages so maybe it was just a matter of brevity in the way that he issued the order and what he was saying it may be but all we have is what he wrote and we also have a plaintiff's requested and i've asked the court to go back to that and that's what should control this whether or not the judge can do anything else i don't think is relevant to this appeal and you're saying the plaintiffs request wise yeah the plaintiffs formally move for an order that require staffing increases that's s t r seven on s c r four to five and seven and they request a quote general staffing increases but i think the point of jewels is making is maybe what they requested but he answered a broader question that would seem to prohibit any action with respect to staffing and i tend to agree that's not that's not right and perhaps perhaps there's you can thread that needle a little bit maybe there's something else but what planners would have to do is go back to the district court and try to figure that out request something different your time has expired you want any questions on  what council sure was there any particular aspect of the argument well this is really a discovery dispute well it's it did start out as a discovery dispute whether or not we had to turn over files of two inmates who were close custody inmates  that our that admittedly would be a discovery dispute but the judge took another step in additional step and said you have to turn over there so those files because i'm considering close custody sub class members and because you now have to monitor close custody inmates compliance with the stipulation that's what takes it out of a discovery discovery dispute around because the order is that we must now comply we must now monitor these close custody in i was something that it ordered and it's real sixty order you want to bug him beyond just merely defining who is and is not in the in the close the subclass it then said not only are they part of a subclass but you have to apply all these performance measures to them which is something that we had done before because it wasn't it's not the stipulation the stipulation that least fifty four times refers only to max custody inmates maximum custody inmates not close custody means they had brought up that they had mentioned that that the purpose of the subclass the enumerated units provision was to avoid gamesmanship that's just simply not true the subclassed definition was created by the district court when it certified the class years ago this  then it was just imported from that order and placed in this into the stipulation it was we did not create a new subclass for purpose of the stipulation something that the district court had found all along would you agree that the effect of the district court order was to reduce this subclass i think it i think it it increases the effect i think it i believe i forget who brought this point but it was a very good one close because the inmates to be for this order had more out of cell time if this order stands we now have to conform them to max custody inmates and monitor them and only apply the performance measures to them which would result in less out of time i thought the  these these inmates are spending time out of their cells so they're not part of the class their argument seems to be the class was initially set at twenty two hours of confinement and at that point  that was synonymous with max prisoners but now we have other prisoners who fit the twenty two hours and the intent was to get all prisoners who were in isolation for twenty two hours well i mean that's kind of an interpretation question but  are right but they're not that close because they are not now twenty two hours or more they're offered much more out of cell time and it's been like that that nothing has changed there was always a separate classification that they were in they were offered and eligible for and they're saying well actually they do in sundance so it's not just an evidentiary matter to sort out it let me put it this way if there was sort of like a venn diagram if there are close custody prisoners who actually are in there more than twenty two hours do you think they're in the subclass  close custody mate who's in their cell for more than twenty right now because they're offered by definition more than twenty two hours to be out of their cell more than twenty two hours they we can't force inmates out of their cell they can refuse to come out for a wrecker first to shower or to eat  and some inmates do that but that that would give the inmates the power to conduct the sit in so that they are part of the x custody class and part and and the stipulation does apply to them i don't know why they would do that but that's why this is not an