is about whether the state of connecticut department of corrections can permanently deprive connecticut and me of visitation with his spouse and relatedly whether they can do so without any due process well when you say permanently  permanent there's no there's no defined temporal limitation there's no opportunity for review of the order it's purely at the whim of the warden at that point so for all intents and purposes as it's an effect on the inmate it's a permanent isom your position would not change it would still be it was still be considered permanent yes my position would not change if the court had intervened in and cut off the the deprivation it still would have been a permanent deprivation up until the court intervened that time that aspect of the case since it was termed since it was terminated the official since your argument that it was prominent seems to  right to violate visitation there was no temporal limitation every case that that says that there's some reasonable limitation on depriving inmates of visitation has a temporal limitation in it so for issue of whether what what if a warden doesn't know how mom it can or should be warned put us just say five years and and then cut it short and some point  it might want to make it in an indefinite to related aspects because if i would responded to as one if you don't even know if it happened and you're depriving someone of visitation with their spouse for an indefinite period of time that's you invest you have to are is the decision to continue going to be right rationally related to a legitimate being logical interest at that point if they've investigated and there's no real justification for continued deprivation then  potential scenario that could occur and that that may be a constitutional deprivation and that's almost precisely what the court said in overton and said there was a two year ban subject to review at the end of two years and they said well if if it gets applied arbitrarily and ends up de facto permanent then there's maybe a constitutional violation there and effectively what we're arguing but i'd also like to point to the regulation as well  regardless of whether the first amendment right the connecticut inmate visit regulation also establishes a protected liberty interest that under which the state of kinetic cannot deprive inmates of non contact  giving them minimum procedural protections and here if you look at this regulation and you compare it to kentucky department of corrections you times and you compare it to tell you every fields you can see this regulation that now you're talking about a d and under that regulation at a minimum the state of connecticut should have afforded some form we should provide should provide a notice to the in may and it should have given some form of ability to object and have a review of the decision of no contact violation for a deprivation for conspiracy to convey contraband i mean clearly there's no ability to convey contraband through a plate plate glass window at the prison and you can you can communicate information options and you could communicate in for information through letters and phone calls which he was permitted to do as well so clearly the interest was not in ceasing all forms of communication it was to prevent the conveyance of contraband and noncontact visitation effectively does that there's no need to to impose that heightened level of deprivation under the circumstances and again i'm just pointing to that regulation there's all sorts of limitations within that regulation doesn't that's not to as good insulation was he permitted to communicate with his wife by phone after four months your honor what happened was after four months the warden reviewed this case decided  and decided to allow telephone contact and then when she found out through just through the injunction proceeding that he was actually married then she authorized non contact visitation so frankly writer in that setting in that form they don't take your word for it if it's not your file it doesn't exist unlike here but in that form if just because you said doesn't make it so these are the same people that every every year round robin on everybody automatic everybody's of the islamic faith they want the special ramadan meals so now she's not going to take his word for  it and he wasn't offering any proof was he given the opportunity to make the argument yes because he'd take four months to make the argument he didn't make when he was married i mean there may not have been an elaborate wedding ceremony but there was certainly an entry in his record there is nothing in this record or in fact he listed his next to king next of kin in the event of an emergency as his mother who has absolutely no indication his record that he was determine it's appropriate circumstances where it is appropriate would be to avoid manifest injustice or there's no additional fact finding required and mr gunning smith in his brief maintains that no additional fact finding would be required so the court should entertain it there is another layer though in this comes from judge cur decision in which judge sac was was on the panel bogle a soggy versus connecticut four seventy s third for ninety eight judge curious wrote that even when you  have manifest injustice or you have no additional fact finding required the circumstances still normally do not militate in favor of an exercise of discretion to address new arguments on appeal where those arguments were available to the parties below and they proffered no reason for the failure to raise them and what we have here is we don't have this are going smith telling you why he now i think i think we're done with that piece of it the other thing i would like to say is there is the second part of his appeal goes to administrative director ten point six and in he claims that  and in order for the state by regulation to create a liberty interest that's protected by the due process clause that he needs to show two things one is  that it must create he must show a typical significant hardship and you must show show that the state regulation removes discretion from prison officials in other words that one certain subset of predicates have been that a state official has no authority but to has no authority to deny visitation and that's certainly not the case here the first instance who is no it's just a typical significant hardship the court overton recognized that the two year deprivation in that case was not a connor which is the seminal case on a typical and significant hardship and creating creation of liberty interests so fails for that reason from from prison officials in making these these visitation decisions in fact it authorizes the department of correction to any or any official to cancel visitation or to remove a the event that there is a reasonable leave of a safety and security issue and then they articulate some of them what is a reasonable leave is entirely discretionary and  married it's clear from the file that he repeatedly indicated that it was his wife that was removed from his visiting list as part of his agreements process and this just proves the point about why he's written statement afford him some minimum  related to the regulation issues the atypical significant deprivation prong and we've reached this extensively but the code of penal discipline in the state of connecticut allows for no more than a sixty day deprivation or a modification of bot social visiting privileges for a violation including conveying contraband into prison it's certainly a typical in significant that you would deprive someone for eight months or longer for just believing they may have done it when you couldn't do that if you could prove that they did it under the code of penal discipline and then with respect to the issue of whether that regulation creates substantive predicates to guide fish discretion the court needs to look no further than kentucky versus department of kentucky versus thompson that case has a similar regulation that talks about a visitation regulation that has allows for denying visitation for issues related to safety and security and the supreme court says those are official