challenged the conditions of his confinement by the bureau of prisons in many instances he is kinda confined out of the same conditions as individual criminal inmates in other instances he's confined under worse conditions that individual criminal inmates and we're here today simply seeking to have the court establish that mr magically is entitled to the more considerate treatment and conditions of confinement that the constitution guarantees him under young romeo and other case law so as background of the court like a little bit of that mr mathers was criminally sentenced to a forty one month criminal son and he was released in two thousand and six are set for release in two thousand and six on november twenty second two thousand and six the bureau of prisons  tained him as a civil and committed person under the adam walsh act the adam walsh act specifically requires the attorney general to place a civil or detained or committed person within a state for custody care and treatment or if it's on able to find a state then for treatment in a suitable facility presumably of a federal facility here the bureau of prisons makes no distinction and they admit this on the record between criminally sentenced and mates and individual serving civil correct your honor and our position is that the evidence here demonstrates that the prisons actions are punitive in certain instances we would suggest that where they are the exact same there's a presumption of punitive treatment under jones well it's a direct quote your honor and the nice circuit specifically said that where a civil he committed persons conditions of confinement are similar to the same as or worse that there could be admitted could be many many different measure i agree your honor and it's a rebuttable presumption under the court's martin v gentile case if there is no punitive intent or if it is legitimately related to a government governmental entrust then  governmental interest then it's not punitive and some of the government can show that it's an option it of if it is similar and there's a legitimate reason for it then it would be acceptable but in any event  as young bird establishes civil committed individuals are entitled to more considerate treatment and cannot be punished for any reason as a result of their civil confinement the first part i would like to address here is the district court's error and granting summary judgment for the bureau of prisons on the issue of educational vocational programming mr madeley claimed the bureau doesn't dispute that criminal inmates are entitled to vocational training from the granville community college program differently i think there's a distinction here on earth where we're saying that he should not be treated like criminal and mates are for the policies and procedures that are applied to him on a general basis such as solitary confinement the bureau utilize s solitary confinement and they refer to about different words but it's altered confinement for civil he committed individuals in the maryland unit just like they did for criminal enemies and so for those purposes we are saying that those policies and procedures mr malley committed sex offenders there's a whole different focus and that is true for a particular illness  and so you have these two different modes if you have these two different programs but each is geared to the particular needs of a certain is also entitled to educational vocational opportunities under young berg the court recognized that civilly committed individuals are entitled to training which is reasonable in a lot of identifiable liberty and choice and the circumstances of the  program well the bureau of prisons has actually acknowledged that they do still have time to take these programs they might not have as much time but they do have the time and the presence doesn't dispute that and doesn't dispute that individuals could take but right i don't stand under the case law your honor he is entitled as a matter to more considerate treatment now there's not a as a matter of law i don't think you can say that he's entitled to forty three hershey's for you know even if you can if you disagree with  here and i don't understand how these the scheduling and the admissions requirement for these different educational programs how does that happen how does that the part of the prison administrators that's that's just an administrative question about which people can agree or disagree and our position there your honor is that it's punitive and that these explanations are mere pretext the government contends that for example the reason that civil confined individuals like mr mattingly aren't entitled to the same number of courses for the same number of hours is for safety reasons because they can't have access to well i mean we're you know we're trying my problem you're trying to get us to sort of supervise the curriculum of this institutional i'm just not sure offer we agree that they should work out those details your honor we're not asking you to work out those details but we're saying where they have worked out those details and they don't meet the constitutional standard for more considerate treatment for individuals like mr motherly then the court's job is to step in and say these programs as you've offered don't meet that standard you go program by program you can do a program by program we're asking that the court simply require that more considerate treatment the bureau of prisons can then go back and revise the programs to comply with these standards and we're not asking you to address it every single one we're not saying that they have to be forty one hours forty two hours and once the stopping point well you like your honor as to the unnecessary strip searches ammash downs that is an issue here specifically mr madeley pleaded that he is often strip searched after he is had disputes with individuals at the bureau of prisons with workers with  simply detained individuals and the bureau of prisons doesn't dispute that they don't dispute that the captains and lieutenants who perform these do so in their discretion there are no written guidelines establishing when extreme starts going to occur when a shakedown can occur leaves experts recognise the shakedowns and strip searches are often used as rich or abusive and retaliatory measures here the trial court simply accepted the explanation of safety without really addressing the issues the bureau of prisons said yes it's a safety issue the district courts a day and we say that mr madley has sufficiently identified information  people the searches they do they do serve not necessarily if they are done in a punitive manner your honor and here where they are using strip searches and cavity searches simply to get back at someone for arguing or raising an issue they don't agree with then it is punitive and the evidence of that is simply his statement that it's it's happening it is a verified complaint your honor it would have the same yes your honor and he pleaded that in his complaint and the the evidence demonstrates not on the record that it has happened he pleaded that it was a verified complaint the recognizes that and so he has sufficiently provided evidence that and restrictions second the court properly granted summary judgment where plaintiff failed to present evidence sufficient to rebut the presumptions that the challenge conditions were reasonably related to legitimate government interests under young berg there is no requirement that the conditions that civil detainees be subjected to that they be equal to or better than those sentenced inmates the requirement is simply that the conditions be reasonably related to the purpose for which they were confined and in complained voluntarily confined for the purpose of receiving treatment for his sexual his mental disorder related to a sexual offending it's very different than those sentenced inmates where it's rehabilitation and punishment where there the challenge conditions are based on under young based on professional judgment and the reason the related to government interests that are  presumed to be valid and that was the case in each of these the defendants did not rely on one simple government interest for any of the challenge conditions which except for the searches in each case there were several bases for the conditions many and also protecting individuals outside of the prison with regards to the mail it's not so much of the least restrictive means they've tried the institution had tried a less restrictive means by random screening and that's where they were found that they were potential abuses of individuals in the community hurt the individual who does the initial screening of the correspondence she's not the last level of screening she does an initial screening and then presents any any correspondence that she has questions about to the administrator and then from they are the administrator the person t p program she doesn't even have is at that point does not have the authority to restrict or deny the mail it then goes to a third level where the warden has the final say so on whether or not correspondence is rejected or goes through to the individual in this case the facts presented to the deposition were that most of the correspondence even where it has something that may not be so long as it's not contraband or otherwise it does go through the publications and that's one thing receive a different screening and even there there's multiple levels of review it's not a one piece one decision and  searches are reasonable related to maintaining security the point up didn't present any evidence or any facts indicating that they were that the searches were done to him with the intent specified intent to punish or that they were applied to him in a can't just make your conclusory statement on your own motion that that this is a punitive policy and you have to have something in the record that indicates that it may be impermissible there may be that you know maybe that exists maybe that can be done but all i'm saying is that on this record what was before the district court it wasn't done i don't you know i don't know whether the strip search policies are best or could this record makes makes the case some of these things are questions of law that the idea that you know and that's why i don't think enough care was given to this complaint this challenge of the the institutional practices of an institution you have to come at it with more than this i agree and let me ask you a question about some one of many claims as judge walks in has pointed out in the complaint is a contention that the defendants are violating mr math ollie's fifth amendment right to be secure and safe in the prison he alleges that  prisoners often taught and harass him and call him a baby raper and child molester and that b o p personnel at least the food service personnel are aware of this and often laugh and ignore the harassment seems clear to me that he doesn't have to wait until he's actually pummeled by fellow inmates to make out a claim the response by the district court in this case was that math really failed to provide any details or dates about when these alleged threats individual sitting together that sitting through an educational class or anything like that it's very incidental and it's under staff supervision the coming going claim that he's the plaintiff raised in this case is almost identical to already looked at that and said that just simply saying that at some point something may happen that's not enough to state a claim there was no there were no allegations that there were any actual assaults by senate inmates on detainees attempted assault or that the staff knew that there was a viable threat or anything more than just simply name calling is plentiful ledge and i failed to take any action it just didn't wasn't enough  coming up here on deliberate indifference to an inmate safety oftentimes they're able to most often those cases they pointed to some instances of physical harm or they wanted to cosimo's there's so much more concrete and what's present here i agree there were and there were no allegations  if there were something further that there he provided instances where staff knew that there was a threat or there was a credible threat or anything like that and they simply disregarded it well a threat versus a talk of use i don't think  it's a kind of thing that happens as a result of daily interaction but the fact that somebody is taunting somebody by  malley filed his complaint a little over six years ago as a pro se complaint this is the first day mr mathers case has been court for a hearing  i read that complaint about four and a half years ago and my reaction was an overwhelming sense of hopelessness as it related to him possible life in  confinement as a civil confined person disciplined like a criminal with the rules applied to him without regard to his sat status as a civil confinement person deprived of the advantages that some of the criminal inmates received and the reason for that deprivation is because he can't be protected for the reasons  those like him can't be fully protected if they co mingle in the way that they would have to co mingle in order to enjoy those same opportunities they are just there despite their despised minority within a population that is a despised minority they are segregated for their own protection and as a consequence they have less access to these things that happen to be important to mr mad y and who's to say that if it the education your honor just briefly because who's to say a man who warns how to fix a car or build a shelf or do carpentry in some other way might not find healing in that context as opposed to the training that and treatment that has been prescribed in the institution and he is civilly committed he's entitled to determine his course of treatment as best he can this very statutory structure stands on a razor thin constitutional decision five to four supreme court it is problematic it is problematic and we see that is problematic because these cases come to you they come to the eastern district of north carolina on a on a regular basis  i haven't been here very many times but each time i have come here the night before i have started from the beginning of the record and i have read every page of it as best i could and i was struck by dr steyn how hours testimony that we were able to elicit from her during the course of her deposition she had done a five's this dilemma her job was to supervise the c t p program she was working hard as she says as an advocate in between these civilly committed persons and the prison officials to try to mediate many of these issues but the suitability of civility was something that she could never fully could never fully mediate and it is as a consequence of these problems the mission of the bureau of prisons is to confine and to punish that is their mission and they do it well they do it well the mission of this program is to do something different one of the things is that they these are some of the things that you say also have a very tough job with this and i would say to you you know bring me the case show me the specifics  and if if if you do that but i think i don't want to be repeating myself but the problem is not the truth of your theoretical proposition the problem is the backup and i just you know as anika have said on these deliberate indifference cases so many times i've sat on strip search cases so many times in those complaints the ones that make headway are in the summary judgment records that make headway are the those the get down into the nitty gritty and provide some specificity and provide examples of of abuse in human terms that reach the co we obviously felt as if we had done so through the depositions that we took of dr stan hower through our expert and through others and we have the belief that if we were able to put mr mattingly on the stand along with some other inmates there we would we would have a case but he's never had his day in court and the justice that we're asking for is that he have look at dr stan ours deposition and to look at our experts deposition and we think that those were sufficient to survive summary judgment certainly on the issue of male strip searches and some of the other issues that judge