and of course inherent power point from the thomas of this is a case where we have it and may who's going to be in prose help if you spoke up a little bit certainly this is a case where an end mate is going to be serving the rest of his life in prison and the way it's been going on looks like he's going to be doing that all being that a kid with medications we don't know about course the prisoner is but the case got to this core condition of his i don't know if it's called treatment or first called something else very little notes on the file regarding whether this is treatment or just warehouse he called it where it will and that picks up an interesting point i want to see if you agree the way i read this and i think it's helpful to frame this case i spent a fair bit of time thinking about it there are sort of three discrete aspects of your claim or three claims however you want to put it there's aspects of your claim well they are and one respect the way i read it though the commitment itself getting to that point we're past that point he's being committed and no challenge was made to that and i think the two legal doctrines could be a bar to a determination whether the national commitment was warranted the ongoing part of it is a different consideration and to the forced medication as well but if you talk about the continuing commitment i think that's still a hack issue because the fact of the matter is your remedy is a hey b s corpus petition so that's that's number one and hack then number two you analogize it to a state court state tort claim and there are two torts that are possible here a malicious prosecution which has been extended to civil cases in iowa or false imprisonment either one of them you have to sort of challenge the underlying decision to continue to commit him and so it seems to me that that is a hack versus humphrey the third issue completely independent probably not barred and i think that's the third issue is what how i have looked at this  because the the reasons for the commitment could be completely independent of why he's you know that the treatment that the fallout from the commitment as i pointed out my reply brief i mean the treatment could run the gamut we don't have anything the record indicate what kind of treatment can address those things without the force medication issue it seems like the first response is the easiest perspires for the gun for the seems to me seems to me though the answer is it's not completely barred is to force me to the extent the aisle of a court of appeals either had a forced harper type issue before it or that out its ruling combined with the prop would the commitment process satisfy the harper requirements then as of the date of the second iowa court of appeals decision the forced meds claim is barred but i don't understand why it would be barred for any period after that  i got it wrong no i'm in complete agreement with it i think that so but your brief your brief and your reply brief i thought clarified that you want to attack the iowa court of appeals on decision on the forced me that it seems to me and i don't care if i'm not i'm not inclined to apply rooker feldman these days but it seems to me preclude a some type of preclusion is going to bar that i don't see any reversible error and in district court so ruling well over a few those two appellate court decisions and my recollection is that they didn't squarely address the forced medication they don't have to squarely address it if if if they if they were approving a process in in which the medication was a was a part of what they were approving  if it wasn't challenged well it i mean claim preclusion precludes things which should could have been challenged as well as things that were challenging that's a tough bar for me to meet her you know that's what that's that's why it seems to me you've got a you've got steep hill to climb up to the date of the second i'll court of appeals decision and i haven't studied me you want to attack you want to say there was nothing in the record that would permit the iowa court of appeals to validly approve of we don't see anything in this book but preclusion doesn't require a study of you know what was argued and how was it argued and what did did the court do it right the state court and if there's preclusion the federal district court doesn't have to look behind the precluding the precluding decision i would agree with that so then that leads us back to the forced medication ongoing funds going into that i don't understand why i don't understand how that how the district court came to preclude that or bar that well i guess i may be opposing counsel will tell you about how how it was argue that that the district court could not because as i understand the pleadings it was up to the day and he was making the allegations as of up to the date that that the court ruled right yeah so and that at that point he had had some number of months or maybe a year or two since the latest court order unless there's a court order i'm not aware of well and beyond the record i went to visit mr thomas at the prison last march where they go and i mean it's not surprising to hear that medication continue appendix why haven't your client gone back to state court he probably will your honor i don't know if he has yet but certainly that he and i talked about that to get that squared away down there so that the federal court said don't have to spend time  in the federal courts to be taught to be applauded for spending as much time on it as they have but on page forty eight of the statue under which he was committed  one of three boxes and the third box says he has received seriously mentally impaired and in need of full time custody and care there are two boxes talk about treatment this one doesn't talk about true yet they claim to be treated what are you reading from page forty of the appendix it's one of those periodic reports of his so far after the other state court ruling this one  i think before yeah i was it was march of two thousand and fifteen all right so if it wasn't before the stake order should have been yeah well the price you know was before the state court than they obviously consider had the had the and the capacity to consider what you're saying about it and this particular part of the record this has the first indication there are subsequent reports say the same thing and the statute itself hasn't changed anything any any way to what it does is a contemplate certainly be in his best interest to be quiet and manageable in a prison in a yard full of violent inmate sure and i think that's one component that the president has taken to can consider and they have to keep order in the facility and they have to make know they're secure this is all state law stuff i mean i want i have every confidence that the iowa code in the iowa courts can distinguish between the the  proper custodial treatment of inmates and the medical treatment of inmates and apply the statutes to differentiate between the two and decide whether your client is being properly house the medical component that you just is missing and the statutory consider it's also missing in the records where they play harbor to presumably so but evidently the legislature is not with you have this choice to check in this is only box district which doesn't contemplate medical interests of the counseling let's let's presume that forcible medication and implicates the liberty interest there's a section one hundred eighty three claim here i'll just presume for that first second and then i guess my question then becomes on the continuing medication claim i don't see any medical evidence raising an issue here and other words the and this isn't a discovery issue this is affirmative evidence you've got to come forward w it's summary judgment say look actually medicine x that he's taking is not used for whatever mental condition he has and should not be used on this particular patient i don't see any of that i see the argument you're making here what what evidence do you have that could have been figured out to discover but you don't need discovery to figure out what the state thinks the reason as you need to come up with evidence that shows why you think it was improper at least to survive summer yet because what they think it is isn't going to isn't going to prove your case no of course not but i think is under the age of the age of forty five certainly and so things change he may not be the medication maybe his treatment may be if psychoanalysis i mean there's all kinds of things that could be technocrats aeration very strange to be there's a serious exhaustion may please court my name is william hill and i represent the iowa prison officials in this particular case this case presents the issue of whether a civil suit committed i was found or can bring an action for damages under forty two u order after the second iowa court of appeals in addressing the question of is ongoing medication i don't believe we do but i think the issue it really what the court is asking is could the issue of his medication the fact that he doesn't like the medication be raised in the course of his ongoing periodic reviews and i think the answer is yes and i think the court i will court of appeal we have an exhaust addressed only that commitment by the defense is raised right because i think that what i thought the issue was and when and the district court took that good defense to the first part of the case and threw the whole case out that seems to me is is is a problem for us and i understand the issue because i think with regards to the and initial civil commitment i think we're fine that that's not being challenged in terms of the continuing ongoing civil commitment court and said well stamped there is a harper due process claim is there an exhaustion issue and if so was it it played in i think what the no it pled i did not raise an affirmative defense of exhaustion i think i viewed it as a heck claim no jurisdiction and so if there is no jurisdiction if the claim hasn't yet a risen exhaustion hasn't become issue well but but on the hack issue this is the continuing confinement of the continuing conditions of confinement which is what this says i'm forced medication that is not something you bring in a second a petition so hacked on its face really doesn't apply this this is something you'd have to you'd have to deal with some other way by exhaustion as judge loken recommends or something else but it doesn't seem to be the wrecker feldmann ok or hack really apply to that one you know i think the exhaustion if we go down that road the exhaustion is what he does via the periodic reports and i think that's what we see kind of the underlying issue the force medication in the very first the two thousand and fifteen i will court of appeals case they looked at the issue of he did not like the medication he wanted a different medication he indicated he wanted to dex a brit and the the powers that be that doctor said no that's not a good medication for you so the argument of the prison officials is that yes if you consider it as the exhaustion issue the issues with regards to force medication or something that can be raised in the periodic reviews as a part of the process all of that true but i wonder if there's just an easier way out of this which is on summary judgment where did that we're revealing this to novell and what i'm not seeing anywhere is any evidence from the plaintiffs here that there's any problem with the forced medication you can't simply allowed i'd like to have a different medication and bring a section one hundred three claim and survive summary judgment you've got to come up with maggots that shows it's inappropriate for your particular condition and i guess what's what's if your client's position on that if he would have to bring that that evidence he can allege more and if if you take it if this is an eighty three case he's obviously proceeding as a deliberate indifference to a serious medical need it's a sophisticated condition he's going to have to come forward with expert psychiatric can get testimony that says the eye what doctors missed the boat they missed prescribe it they're giving him medication a he should be on medication b this is so obvious that this is something that the general public would recognize to satisfy the deliberate indifference to a serious medical need well and his response would be discovery i think it discovery so how was i supposed to prove that in their response would be that yes you do have that option to bring it am being medicated for the guards convenience i am not being medicated because of my medical condition and i'm now in general population so so i'm not the i'm on the civil commitment as in name only i'm really an inmate he doesn't he doesn't need all kinds of medical experts to put that issue before it a federal or a state court i think he did if you're looking at the motive in terms of why those gigs he's looking at the mode right that's his evidence and i'd say the motive is justified by the civil commitment itself the motive doesn't have to but the civil he's been released into the general prison population right you can say average what's the evidence that this is still a valid civil commitment when he's in the general population i think the evidence that it's still a valid civil commitment is because what happens with individuals they bring him back into the the realm of the psychiatric hospital get him stabilized saying ok we can see that you can manage it on your own we're point to assign you as a it's just like we can get you in a mental health documents in the record that are  think that it because it's on their review of the you know we're not trying to case we're lucky i'm using the result of the commitment or the periodic reports and so i'm saying the decisions been made work if we're looking it forever no i think it's the periodic reports i think are cards that is forever dismissed with prejudice right well but what mr thomas's options are he could go back to state district court to the hospitalisation referee and say hey my condition is now better i shouldn't be on this medication and then present that argument and either it's up or down in that that that's his form to challenge it he can't have another opportunity in this gets back to the heck to say well i'm a state you know if you're consider rockefeller but our heck you can't somehow convert a valid judgment into an eighty three claim if his motive if his motive allegations are true and there is no legitimate legitimate medication orders that the guards can and fall back on he may have a damage claim he may very well have a damage claim but that's what he can establish with the judicial hospital where free for all no no he doesn't have to you know and they have to exhaust that are you saying that because he he simply committed he can still claim on top of that that the doctors are that staff have been deliberately i'd have said i don't think his record establishes that after he's released to the general population he's civilly committed i doubt that you can tell me a point me to a statute that would make that clear i think law and i want there's an alternate placement statute in allied to cases that say if you're simply committed we don't necessarily have to keep you in the hospital we can put you in a different wing as long as you function and so i think that's that's that's fine but a on the in the federal in the federal federal system on the competency question and  you're you're put in the custody until you can until you're competent to defend yourself and then you're no longer in that commitment process what isis in iowa we there's no there's no certainty as to what what the status is  bit circuited the evidence you you said rooker feldman no evidence needed right right that's because he's a state court loser essentially complaining about the civil commitment decision and the periodic report what they're one in the say because once the court determines the court determines he needs medical mental health treatment as a part of that determination the i will courts will look at the level of treatment given and mr thomas will be given an and it made him practically comatose ok right and you're going to rely on the civil commitment order to say he can't challenge that except for periodically through a civil commitment get it he can challenge it through the civil commitment have to wait a year or wait a year and a half and  court but that he can charge that one under harper it any time that i'm not sure i'm not sure what exhaustion is required when you have if you have this situation where where you can where you are and you are in custody as an inmate and you allege and they have a prime aphasia case that they're forced medicating you not for medical reasons and then you're getting into the if you're questioning the motive i think the motive has to go into the because that's part of this well commitment order in the determine a half the civil commitment order what that were passed that were passed the last judicial approval of the civil commitment so i think he goes back in order if there's obviously been subsequent activity as to the periodic reviews and either he needs medications or he doesn't if he doesn't need the medication he can present that claim during the process of the periodic reports hearing he was allowed to satisfy the different processes i was statute is constitutional i will follow the rules with respect not challenging at least in the medical treatment claim that literally the civil commitment is challenges medical treatment and i think you can challenge you can your treatment as part of the periodic review otherwise this court will start sitting in review of every state court determination the doctor let's let you paraded the horribles and let's suppose you've been unsuccessful in the only thing we agree with is that the emission initial commitment order and in the end the ongoing approval of the of a commitment is is was properly dismissed right but everything else you argued we  that that order there is no there's no judicial there's no judicial commitment since the last time a court two thousand and sixteen and there's no ruling of with regard to force medication since that time and therefore the district court shouldn't have dismissed the whole thing with prejudice now what do we do then it goes back to the federal district court to say well we're not sure what the state court proceedings are  kind of like an exhaustion of post conviction relief remedies and we're past that there aren't any judicial proceedings but what i'm saying is there could be could have been additional proceedings between then and now which could have clarified what went on with mr thomas sentara last reveal is there anything pending in the i would court i do not know i do not know he has his current status i'm concerned about his claim for damages for what's happened and i would assert that the claims he the claims are barred because of hec because that decision as i think they're unlikely to be to be successful but i don't think there bart ok know we could all agree to disagree at this point because i think the issue is his civil commitment is out there he has an exam he didn't reverse or invalidate the civil commitment to claim  damages for what happened to him and i think as to what may have happened to him in the future is a claim that he can challenge through the periodic review process under iowa law leaving aside the periodic reports if my question is what in the what what medic to what extent does the commitment order including the judicial approval of the commitment order address the question the medications where do i look that the medication makes him do that and if the medication does does that it's only the doctor who can prescribe  so that's the claim of the state i understand this is a contentious issue wouldn't need to shoot it we could we would request that the decision of the district court and i want to ask you one more question because i think you're putting too much weight on the periodic review asked question of the fifty five tell suppose that they you know that you're relying on this treatment they get an electric shock therapy and all of bottoming and he wants to challenge those things does he have to wait for the periodic review that's treatment right right i mean i just don't i don't see how that works if i get it it's to me the example that i was going to use was when there was an arrest of an of it individual you have two aspects of that that issue whether or not they committed the crime and if the police used excessive force i think those two can be partitioned off and examined independently what i'm saying is in the civil commitment the treatment when the doctor is ordered to treat to solve the conditions if this guy's a aren't worth him self or others i think that's those two are still so intertwined with the whole concept that that's that he doesn't have an opportunity to to do that and and unless it's through the hospitalization procedures