there was no constitutional violation in this case even if there had been st qualified immunity would protect cordon blanket c and nd heavens would not provide a remedy i want to stress upfront that there was no constitutional violation here state court order on which things claims rest did not command ordon glen concede to do anything even if it did a state court cannot bind a federal prison warden like warden blank and see mr kane conceded that point in his brief case there simply isn't any unconstitutional conduct here that could see qualified immunity or be the basis of an ns claim moving on to qualified immunity it clearly protects war failed to show that any asserted right was clearly established his asserted right to be free from arbitrary government action hatch that much too high a level of general generality to feel qualified immunity there are no cases from this court or the supreme court defense does not provide a remedy here the supreme court has repeatedly stressed that extending the bivins remedy is a disfavored judicial activity and should not happen if there are one reason to think that congress is the proper branch create a novel damages remedy here there are several reasons that this court should pause before crafting a new defense remedy extending the remedy would encroach on the functions of the executive in the sensitive area president ministration know grievances can be filed in addition and this is somewhat disputed but there are probably remedies somehow at the state court if you know post judgment remedies there and try to reopen the case if there  actually had been some sort of problem that that there is on the outcome of that case there so those are some of the options are available but i would always get that before we get that i suppose there could have been you know if i want to have approached a prisoner in a civil litigation produced in my courtroom to try that case what i did was issue that kind of writ and of course in that situation i was usually the court that had the proceeding of the state court can do that by definition the federal warden but i imagine a federal court would but that you know these are sort of strange waters it seems to me and certainly strange to invoke such a remedy where any remedy at all in a case where the proceeding in question does not actually require the prisoner's presence to the district court judge before the ruling was made and is it anywhere in the complaint and in fact the individual was produced by don't so mr cain acknowledged before the district court that he was produced telephonically and i believe there is not a specific allegation either way and his complaint i i want to be careful where i think he may be says he was forced to mess a court appearance but i'm not sure he has specific allegations about telephonically or not but in the course of the proceeding for the district court i believe the government st raised a point in a letter which then mr king responded to acknowledging that yes he was produced  per se but i'm not sure he alleged with much specificity exactly what happened in terms of him not being physically produced but he did acknowledge report the district court and has acknowledged before this court is accurate is accurate  default and that i guess yes that's the question of taking additional notice of the judicial stuff in the that that's correct your honor i'm not sure at this point that we actually still have a live issue understood i understand that i'm just trying to understand why the word arbitrary is anything but it isn't there an obvious you know logical basis you've got a warden to whom the custody of this gentleman was intrusted by a federal court mid to the custody of the attorney general and the every petrel district judge in the country had conducted proceedings i'm sure in which a pro se prisoner appeared telephonically rather than subject the prison system to the burden of sending the person in court for what could be any number of free trial conferences which could recur in a civil litigation time and time again over a period of months back to one court back to the fort back to the prison back  back to the prison when it's perfectly conventional today if conventional even through court of appeals to have people hearing remotely given the extreme circumstances of the fam demick but it's always been appearance by the question if we wish the question is normally we could take the additional notice of the transcript of a proceeding in another court and indeed i was under the impression that one of the reasons why you made as to where the principle are you made as to why we shouldn't take additional notice of that fact is that we don't need to because it is a conceded that i don't we would we would argue that the fact that if wardens so the order is kind of the knowledge and if you're relying on bound again smith what you're really saying is if a prisoner request to be produced in the court for a litigation that he instituted in some other if there is going to be some deviation and the prisoner should have my why is there a deviation this far from the basic thing the question is the prisoner says i started a lawsuit d in california  i think a perfectly reasonable thing for a prisoner to think that is right and yes do that and you're saying the warden must either do it or give a written explanation for why not ye prisoners interest exceeds the present legitimate theological interest passed allowing prison wardens to arbitrarily an identifiable defy state court issue orders is dangerous and resist constitutional concerns at this court at this juncture court except