now so we understand you're pro bono so we thank you for your service to the court and to your client thank you your honor a felony dui as part of that the the judge judge give a lawyer retain jurisdiction and put him into a into a therapeutic community program at northern idaho institutional correctional institution or for that is  nikki as part of that there was going to be a period of time where mr lamont goldsby would be able to undergo some some therapeutic programming and and hopefully show himself worthy of being put back into the community early unfortunately when he got t he encountered a racially discriminatory retaliatory actions by some of the prison officials that resulted in his being terminated from the t c program and eventually the actions also led to judge given relinquishing jurisdiction and executing the initial sentence though it was modified for the initially was a three year fixed term it became a one and a half year the supreme court's decision head versus humphrey and that to the extent that the first amendment claim was not barred by heck it would be barred by the the p l r a's exhaustion requirement so the questions here are does hec bar his claims and correspondingly if it does not is the p l r as exhaustion requirement the answer both those questions is known there's there's two keys to to this appeal today the first key is this court's two thousand and sixteen on want decision nettles versus grounds and nettles this court decided or determined to key things for this appeal first where the where there is discretion and as here where the prison officials actions were not a necessary component of the state court the state court judge's decision to relinquish jurisdiction that means that it does not necessarily imply the invalidity or of the conviction or the sentence the second key that all dress today is that when the district court determined that mr the mongols we had not satisfied the p l r is exhaustion requirement  failed to take into account the fact that there were certain actions that occurred after may twenty second two thousand and thirteen that also were racially discriminatory in or tallit and retaliatory most noteworthy of which was the actual reliance on the actions of i want to make certain i say these read cast mr and make peter between may twenty second and june twenty second two thousand and thirteen if that's right are there any incidents that were properly exhausted and properly alleged is the basis of your client's first and fourteenth amendment claims when i clear you want me to repeat that i'm clear and well i believe what you said was  that he's waived anything that would have happened between may twenty second in june twenty second is that correct as i understand it he's waived reliance on the actions taken by cash mature and peter between may twenty second and june twenty second is that incorrect correct that i would say is is not correct are correct and why is that that is not correct because that would still fall within the time period when mr lamont goldsby he essentially he would have still had time to grieve things that happened between for we get to that let's get to whether he waived reliance on the actions of these two people in that one month period ok did that happen i don't believe so ok and what are you relying on for that well i'm not i guess i'm nothing was pursued on that so not having raised it i assume it was waived i don't think that it wasn't pursued in his complaint one of some specific things that he he mentions as the basis for his claim is the fact that you know they had impeded his ability to progress in the program they terminated from the program and then they took actions to get judge give over to relinquish jurisdiction and i think that all of those things did occur after that may twenty second date up through the terminations ok well i guess my my my concern is you know you got it thirty day period yes agree and if if they didn't occur in this one month period then you got it timing problem right if they happened before may twenty second prior to june twenty second prior to june twenty second as long as as long as the actions occurred after may twenty second any of that he would be able to rely on as the basis of his one nine hundred eighty three claim he need to file something within thirty days after june twenty second he did and how did he he did not so high why aren't those the why aren't what is not that claim bard ok so on june twenty second when he was terminated he was immediately taken out of the out of the normal unit is my understanding and was deprived his paperwork deprived of access to the concern forms grievance forms etc and then he was he was transferred to the kootenai county jail as part of the process of me like you're saying there's an excuse for why he didn't file but that's that's greg he didn't file right that is correct your honor yes what's the excuse that he didn't file what is the excuse that he did not file is that correct that's what i'm asking ok i want to make sure i understood that question the excuse is that he did not have an available remedy and he did not have an available remedy because he was taken out of a position where he could have access to the grievances them  taking him out away from grievance forms by putting him into the kootenai county jail he no longer had access to concern forms grievance forms wasn't that and i guess that's where my question is going  county jail so that would have occurred after he was transferred some time after august thirteenth of two thousand and thirteen from the kootenai county jail after jurisdiction was relinquished any again went into ideas he custody and that would have been outside the thirty day window so even if you had done something at that time it would have been outside the thirty days at that point so where was the paralegal just to clarify where was the paralegal available to him  i don't remember the name of the facility i don't believe it was the southern idaho correctional institution but it was a as it was a transition phase he would left the kootenai county jail and he did go to what was an idea o c facility but wasn't at i d e o c r d u seems like a paralegal was available to him on a weekly basis while he was at the i dos i d o c r he was but again that would have been after the thirty day that would have been more than thirty days since he's me after june twenty second two thousand  day time period for grievance that would be that your client could rely upon in this situation you've acknowledged that he didn't file in a timely basis the only thing that sustains or saves your claims in any way is some kind of a whether or not the idea sees grievance policy would have allowed him to have used the tolling arrangement and i'm not aware of anything in and the app ellie's of not raising anything as far as if he wouldn't have been  if he would not have been able to apply the grievance policy during the thirty day period then he would have had tolling the only one i want to strike me with your counsel is this regardless of the merits of your client's claim he didn't file within the thirty day period that was required so his claims aren't exhausted and there's no basis for filing unless you somehow overcome the thirty day problem what i'm asking is on what basis are you overcoming that through the problem i know examine your claim if you will for not filing within the thirty day period yes and again as i said i'm not aware of anything for tolling and again that's not the basis of the of our argument our position but the  received no answer when he was moved they are to you are to unit my understanding is that there was a paralegal available on a weekly basis but he did not have available to him at that time because he was in a transition his legal papers or other information that he needed to prepare those agreements forms as soon as he came in from there from there to you yet there's a time that he was on suicide watch and and other facilities where he didn't have adequate access to his own legal papers and to do the things that he found necessary to to pursue his grievance as soon as he got to the southern idaho correctional institution very soon thereafter within a week or less he put in a concerned form talking about the retaliation due to his termination then filed a grievance form he then filed an appeal and shortly thereafter he filed this lawsuit bringing his nine hundred eighty three claims and it's my understanding that he did do what he thought he could do yes there was a paralegal available  does the law require that he have his papers i don't know what the law requires that he has his papers but i don't think that the local i don't think that the the answer to the question would be any different if he had done something when he got ideas he's already unit he already was outside the thirty days i do you see already would have said that he had not done this in a timely manner and we would have had the same argument here today so i don't think that that that matters when he was in southern idaho he files a an offender concern file that with the wrong person that's denied that's i think november sixth he then files a grievance and that was returned as untimely but that grievance you filed attach the wrong offender concern attached may one correct and so i would have to look at the record him but i do know i have no reason to doubt you on that judge gordon and what i would say is obviously mr margolis me isn't as educated as maybe some of the rest of us are not i do think that he was doing his best but again anything that happened after in my mind  august twenty fifth of two thousand and thirteen would be irrelevant because at that point he's already excused from from exhausting any available administrative remedies which in this case they weren't available and as i understand  knowledge he didn't file in the thirty day period by the time he got to the new facility the thirty day period expired right that is correct basically the only remedy for you is if somehow that thirty day period gets covered in some way well the the most immediate answer that question your honor is we would like the district court's decision to be reversed vacate the judgment and remain on that but understanding that i don't think is the true answer to your question  my client wants to go back and he wants to to vindicate what he feels was his rights he feels like he was wronged by the prison officials and in particular he was wronged when they determined to terminate him on the basis of what he believed and i think had legitimate wants a statement that he was wronged or if you want to go back inside and be in prison again no he does not want to go back and be imprisoning and in fact before this case would ever be done he he have served his full sentence i think his full term release dates july eleventh of this year so it was you want an apology and eventually i think that he will pursue all of his remedies i think that he wants to to know that he was wrong that it was improper what they did to him but also to seek any and all available damages as well what might that be the compensatory damages and in his mind there is he should have been on probation earlier or on supervised release earlier than he was it was a difference of about three years pain and suffering the fact that he was racially discriminated against he was terminated from a program because of his race and for seeking to to use his first i never really gave as correct other question my colleague thank you counsel for your argument thank you for your patience  so let's hear from the state that morning please the court emily mcmaster for the appellate i had intended to start to with discussing had become free what i'd like to do is address the court's concerns effect doesn't apply how would that play on the exhaustion argument first and then  some time at the end to talk about i have let me just ask you course would would apply if it were ever going to render his conviction or sentence valid i don't think that's what we're dealing with here do you agree i disagree ok why is that what's at issue in this case is the court's august two thousand and thirteen decision and judgment denying probation if mr lamont goldsby had been granted probation at that time we wouldn't be here today and in fact in counsel's argument just now he stated that if this were to go back down he would seek all available remedies including compensatory damages for the denial of probation and that puts it squarely within had the humphrey from the state respect the the august that judgment he received prison time instead of a lower level custody and probation and in fact paragraph forty seven through forty nine of the amended complaint in the record at page two ten make clear that mr  theory is it was amanda kashmir's testimony in the court at that hearing that convinced the court to change its mind and deny probation in paragraph forty seven he alleges that as of july eleventh two thousand and thirteen judge gabler was considering probation and the only thing that changed after that date was a man of kashmir's testimony on august thirteenth two thousand and thirteen and at that point the court went ahead and denied probation well that the complaint also makes clear that his theory of the case is that because he lost probation and had more prison time that that was due to the recommendation the amended piece pre sentence investigation report and amanda kashmir's testimony in august and that's the theory of the case and he pleads companies toward damages for that and it's first his first cause of action second cause of action also state that claim that they allegedly interfered and affected his ability to get probation so on that stance heck the humphrey barse this case additionally edwards who bhalla sack is actually one of our best cases on that position in that case the supreme court held that a prison in disciplinary proceeding was at risk of being invalidated because of the allegations in the complaint which was that there were as alleged to see him bias at that proceeding by the hearing officer it's very close to say that whether the issue is in fact the humphry alleged unlawful investigation unlawful prosecution unlawful procedures at trial call into question the proceeding here we have something very similar the record before the court at the august thirteenth two thousand and thirteen hearing included first and foremost a man to cast matters testimony which it was important if not determin seeks to overturn that sentencing judgment through hippias corpus that applies to level of custody as well probation versus in person custody or in prison custody yes it does and that was mentioned  skinner i think citing to the datsun concurrence by judge  it also appears his allegations of discrimination caused some tension between him and the employees at the idea at least his instructors at ms cash better  also there's a recommendation to the state court judge from the and i see employees sided the sides mr gold complaints about racism as being part of the problem holding him back from succeeding looks like in the therapeutic community program so i guess based on all this that was going on in the build up between mr gold's b and the staff at the end i see i agree that mr gold's reason ultimate terminations from the program may have been in part due to his allegations of discrimination no your honor i did not is a couple points can raise first of all the allegation of terminations is not in the record what's in the record is mr gold speeds affidavit summary judgment where he says that he was removed from the treatment community program and i think it was on a friday perhaps the twenty first or saturday the twenty second of june where from tear three to tear four and that's in the housing record as well i can find the cite for that if you'd like that and he sat there over the weekend until he was transported to the jail on monday for purposes we would assume the review hearing that came shortly after he was in the treatment community program on tier three he had to be removed from that program so he could be transported to the jail and the word remove all is in his affidavit at summary judgment at page one hundred of the record in paragraph seven there's also language about a discharge summary you get admitted to program you get discharged when you get transferred just let's just assume that  basically a violation of his equal protection first amendment rights under nine hundred eighty three that would start a new thirty day clock the removal from tier three there is really nothing to that except for the transport if the issue was that the recommendation to the court that came along at the same time was a new act then that invokes the had become free it could start the time again  assuming the does apply does it start the clock again it does doesn't it if the issue was a recommendation to the court on or about june twenty first searching twenty second yes it would start the clock again now the june twenty second date is not even mentioned in the amended complaint that did not come up until i believe argument later on at summary judgment and it's been made into a larger alleged event during the  jails are subject to the procedures of those jails and those county jails are not required to facilitate any kind of contact between the inmate and idea see including sending what they call those  s or grievances back and forth so i'm just wondering doesn't that create a situation in which well mr goelz we was at the coke tawney jail that he could not have started the grievance process for his terminations for the and i see there a community program on june twenty second your honor in the same jail manual that says that the jail won't affirmatively take action on your behalf the jail will deal with grievances at the jail at a different page in that same manual there are instructions that if you have issues that you wish to raise with department of correction to contact  should have done once he was transferred from the good town i jail to ensure that he exhausted his administrative remedies when he was at the county jail what he should have done was write to map the large and request a concerned former grievance and we know he had at the knowing county jail on the record that we had before us we have the manual and we know it was the couldn't county jail its manual i don't believe that he ever testified that he didn't have access to that now could you give me the available remedy for him at the county jail and so by the time he gets to these facility prison time expired you agree with that did he have available remedies while he was he had available remedies at the county jail that was to write matt dillard and request concern forms and start the process while he was there we guard listen any event to address the court's prior discussion he's transferred back to the department of corrections custody on september sixteenth and he sent to the idaho correctional institutional center in orofino for one day and then he's transferred to the idaho state correctional institution which we call  in the reception and diagnostic unit for a period of time and that's south of boise and while he's there in the area unit he has access to a paralegal  thirty days had already expired what he should have done is bring a concerned form bring a grievance at that time at what time if he was at the r t u or even the first day he gets back to idaho correctional institution  that have been returned as untimely we don't know but if you'd done that he would have been positioned to say i tried to exhaust my ministry of remedies and they were unavailable to me he didn't even make that effort he should have made the attempt he also could have asked the warden or explain to the warden at that time i didn't have access in the jail and they would have had a chance to have that discussion at that time with the warden wanted to provide an extension of time the ward could all of that since the grievance policy generally word has that authority to extend the time yes there is an opportunity to extend time if that's requested and in this case it would have been if it had been timely requested which it was not so he waited more than fifty days about fifty days from september sixteenth and til november sixth two thousand and thirteen to even make an attempt but to circle back to my starting point you believe that he had available remedies prior to august while he was still in that's correct your honor and the appeal we answered by responding that on the record itself the same manual that he's relying on to say that he jail wouldn't do anything for him the same manual also says you can contact your best argument is the hack versus humphrey argument you don't even get into this because the reality is what he wanted to do was change is sentence versus oversteps and end of story from your perspective yes that's correct and i'm smiling because i thought that was my best argument after hearing testimony by magic cast matter considered what we call a real thirty five motion and tonight that he appealed that to the supreme court of idaho and then dismiss that appeal at the same time he also sought post conviction relief from the state court and he appealed that to the court of appeals and didn't go any further his right remedy would have been to pursue those remedies and seek a federal hate b s stating on the basis that he believed that the decision itself was tainted the bottom  line versus some freeze your first argument the second argument is he had all of the needed to satisfy the timing involved in the agreements you could have perhaps even asked for an additional extension of time he didn't timing is barred fifty days h very important to administration of justice in the court thank you and you to counsel we know you're in a different situation but we thank you