clerk and of course mr robinson who will serve as our court room deputy this morning mr robinson is the time keeper and he will let you know when the yellow light is on and the red light is  the supreme court is clear that being violently assaulted in prison is simply not part of the penalty the criminal offenders pay for their fences here there's no dispute that mr chavez was violently assaulted in prison when his cellmate who is almost forty years younger than him had a history of mental illness had a history assaulted him and had a history of assaulting a cellmates welcome up in the middle of the night and stabbed him and i with scissors yet the district court's decision tonight in the opportunity even to get to discovery on either his a claim against the united states or his business claims against individual prison officials both of those decisions were incorrect and should be reversed i'll turn st the f t c a client the clear weight of circuit authorit proposition part of its holding here today in doing so the court will be following the well reasoned let me a decision from the d c circuit as well as the clear weight of authority from the other circuits to address this question  wilson and we have not yet like the other circuits squarely addressed in a published opinion whether the exception can immunize const legit constitutional that st i think if you if you read the government's brief it's clear that they initially that they did not agree with leonard either until they filed their twenty eight j letter their their brief was clear that they think it's clear that misunderstood the interplay between the f t c a claim under state law and the constitutional violation which is simply there to remove the discretionary function exception the th circuit suggested that when there was the presence of the constitutional violation simply meant that the district the conduct was not discretionary and therefore the discretionary function exception did not apply so linder really misunderstand the issue and i is there and which the import of the constitutional violation for the f c c a claim is simply that that means that the conduct cannot be discretionary and therefore the discretionary function exception does not apply well the government makes another argument and it brief the government says that you cannot merely assert a constitutional violation that's not enough to avoid the exception he might harm mr mr shires and the government officials didn't do anything mr shavar spheres came true so the government officials disregarding of those risks led to mr dotson attacking said i want to remain on it and that's because he didn't raise the exception to the does discretionary function in the district court so we don't have a ruling by the district court on this issue that  that question either yes or one that is that correct i'm just making sure that is correct the district court did not address the lender lumia question either thank you administrative remedies in the district court so that's not enough and we were view that decision for an abuse of discretion well before the court can engage before the district court can engage in fact finding it must give the parties an opportunity to to develop a record and the district court did not do that here so that decision to engage in fact finding without getting m the issue of the discretion function exception he also filed a motion for appointment of counsel and which he explained that he was not going to be able to litigate this case efficiently from his from his self including things like discovery that motion was denied so we think that it was especially once it became clear that there was a genuine   st but i just want to step back for a moment some of the difficulty here and i understand mr shier is pro se but two of the central issues here that is that the issue that judge hell raised about whether or not mr shier was raised function argument in the district court he didn't he never gave the court never had the opportunity there to look at the constitutional issue in relation to the discretionary function exception and in fact the court never reached that question because it was only raised in connection with the business claim and the court dismissed that their failure to exhaust and then was where even your brief we did your honor in our in our initial brief we did say that and then in our supplemental briefs we didn't repeat that but i would contend that we preserve that argument by raising it in our initial brief legal question and this court can reach it if it chooses to but again part of the challenge here is it's not that the court erred by not reaching it the court was not asked to reach it and similarly the court did an error by not allowing discovery on prisons housing decisions in the same regulations that are issue here is barred by the discretionary function exception and it would turn that exception on its head which is extremely important because all of the policy reasons addressed in gallagher that it was you know constitutional violation where other circuits have found that the discretionary function exception doesn't apply to varying degrees there has been a lot more than there is here and not just labels but allegations that are that make it  liberal they construe them your honor that's correct but if we look even liberally because during his allegations his allegations have sort of grown over the course of the pleadings but his allegations are that there are prisons officials knew or should even raise a plausible th amendment violation and so that would again it would turn the discretionary function exception on its head and in that prisoner litigation reform act i mean the whole point here is to try to streamline it and  have these grievances addressed and reduce the level of of filings and here if you're just allowed to simply relabel conduct that otherwise is governed by tone and then you're really turning it on its head and i just expressed his intent to kill him the court construed that as negligence claim from a discretionary function exception applied citing cohen and in that case there was also a constitutional claim of an assault based on that self placement based on that same those same facts so the existence of the constitutional allegation the court there is just like the court here isn't required to say well hold on a minute based on the same conduct that must mean the discretionary function exception doesn't apply and the reason it's so difficult here and he cited linder the reason it's so difficult i think is because the discretionary function exception says let's just look at the conduct and the subjective intent of the actors does not matter so the conduct  then you have to say well what constitutional mandate tells me how to how people not engaging in cruel and unusual punishment is too general just like the statute is here but it seems like what mr shier is arguing is forget gallagher because he never that he never addresses galbraith and says don't analyze the constitution violation in the context of the discussion or function we don't have to even look at that because i've alleged anything them violation but it is and then violation a lot of the court because the court hasn't spoken on it would need to decide over am i going down the road of winter or lumia and we would suggest that linder explains why is difficult and of course we didn't fight in the brief because we didn't have the benefit of it but  identify the th amendment and his complaint and say that the prison officials because of their death decisions cause his injuries through deliberate indifference to a substantial risk of harm your honor he doesn't say those words he does his allegations are they knew or should have known and then on the next page of his complaint the form he list several allegations  creational violation because of the better i don't know it's kind of a hard line to draw but i'm concerned about is that how do you handle this when he's function then you do that analysis then you say oh but that doesn't apply because he's got a constitutional violation of alleged but then he didn't exhaust the remedy on the constitutional violation case that directly addresses that and that is part of the challenge here again is where we're addressing questions that were never raised and i understand that he's pro se but some point we have to say when does judicial economy take over and the prisoner reform act when are we going to worry about that you know he he didn't exhaust that claim so the court never had the opportunity to even address this constitutional violation and i understand what his allegations are but again this i w sort of a minor run negligence in connection with housing claims and so you have to also consider if you were being practical here about whether or not to send this back to you know the facts in the record he's relying on the facts in the records that say after the fact we're going to move this guy he's got a history of assaultive behavior but the facts also show that they lived together for eight months they were in the general population housed together and mr shier was in an interview said i don't know what happened i thought we're getting along well and there's one person he claims that he told about this this is far from a case like where we have a specific threat bowen is a great example of that again because it involves all of these things we have documented several the facts that you just gave us are not before the court well you're right your honor i mean this court can affirm for any reason and that's in the record and i point that out because i'm trying to trying to get an overall sense of the picture here if the court have reserved some time for a bubble thank you your honor st this case is not cohen cohen did simple negligence there was no constitutional violation and there was no knowledge that any federal official had any specific knowledge about your fears by the plants or dangerous behavior by assailant here and contrast mr chivers expressed his concerns dismiss but also in bowen there was no specific threat and though it was clear that a specific threat is not required to plausibly allege a constitutional violation another thing that i would point out about bo that there that the plaintiff was given the opportunity to him in his complaint twice he was given the opportunity for limited discovery so even though boeing is very similar and that it was a mentally ill prisoner there was a   is his tort drawing how do you have a constitutional violation that would support an exception to the discretion our discretionary function well i don't believe that the that the exhaustion requirement would apply to the constitutional aspect there because that's not forming the basis for his client his claim remains one under florida state law through the federal tort so so in that instance i don't believe that the exhaustion requirement would apply the other point i would like to make is that the government brings up there in all the case from the rd circuit the rd circuit in that case really did not renard they didn't really address at all i didn't have any and i meant analysis that's right it's just a footnote your honor and so the government places a lot of weight on that case but we would argue that it really is not helpful precedent for this court  and then finally the the the government has made a few references to the need to have a process where prisoners can have their grievances addressed but i think that this case exemplifie he's entitled to consider that denied and so he filed a lawsuit he does what they told him to do it every step of the way and now the government comes in and says gotcha you haven't exhausted and so we don't believe that the court should find that he has exhausted we